C^ ^' SjtJ^«^^--^
UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
pieccoa
,<?xctic>iMC«owiucBcuM»a8aBj
iSARSWELL Co.. limited
Bookbinders.
:l!S?o?ks, iTOROnlTO
PCBLISHKRS.etC.O ONT.
a»i9BBaBaaaoo<ionniiwwnn iibimi
Digitized by tine Internet Archive
in 2007 witii funding from
IVIicrosoft Corporation
littp://www.archive.org/details/canadiancriminalOOdalyiala
CANADIAN
CRIMINAL PROCEDURE
AS THE SAME RELATES TO
Preliminary Hearings, Summary
Convictions and Summary Trials
WITH AN APPENDIX OF FORMS
Compileil by
THE HON. T. MAYNE DALY. P.C. K.C.
0( the Manitoba Bar, Police Magistrate, Winnipeg
SECOND EDITION
By GEORGE PATTERSON. K.C.
o{ Winnipeg
THE CARSWELL COMPANY, LIMITED
19 Duncan Street, Toronto
1915
London :
SWEET & MAXWELL, Limited
\9\S
Copybioht: Canada, 1915, by The Cabswell Co., Limited.
r)
^ TABLE OF ABBREVIATIONS.
CANADIAN REPORTS,
s? A.lta. L. R Alberta Law Reports.
A. R Appeal Reports, Ontario.
B. C. R, British Columbia Law Reports.
'^ C. 0. C Canadian Criminal Cases.
C L. J jCanada Law Journal,
C. L. T. Occ. N Canadian Law Times Occasional Notes.
C. P Common Pleas Reports, Ontario.
D. R Decision Reports, Quebec.
Draper Draper's Reports, Ontario.
E. L. R .Eastern Law Reporter.
L. C. G Local Courts Gazette, Ontario.
L. C. J Lower Canada Jurist.
L. C. L. J Lower Canada Law Journal.
L. C. R Lower Canada Reports.
M. R Manitoba Law Reports.
Mont. L. R Montreal Law Reports.
N. B. R New Brunswick Reports.
N. S. R Nova Scotia Reports.
O. L. R Ontario Law Reports.
O. R Ontario Reports.
O. W. R Ontario Weekly Reporter.
O. S Upper Canada Queen's Bench Reports, old series.
P. R Practice Reports, Ontario.
Q. P. R Quebec Practice Reports.
Q. R. Q. B Quebec Official Reports, Queen's Bench.
Q. R. S. C Quebec Official Reports, Superior Court.
Sask. L. R Saskatchewan Law Reports.
S. C. R Supreme Court Reports, Canada.
Taylor Taylor's Reports, Ontario.
Terr. L. R North- West Territories Law Reports.
U. C. L. J Upper Canada Law Journal.
U. O. R Upper Canada Queen's Bench Reports.
W. L, R Western Law Reporter.
787813
ADDENDA ET CORRIGENDA
Page 80, R. v. Suck Sin, read 18 C. C. (3. for 16 C. C. C.
Page 80, In re Holman, read R. & G. for E. & C.
Page 90, Re McMicken, 21 C. C. C, should be Re McMicken,
20 C. C. C.
Page 168, fourth paragraph, read " backed " for " back."
Page 170, second last paragraph, strike out 1 East P. C. 319.
Page 184, Re Sarault, 9 C. C. C. 48, should be 448.
Page 199, R. v. McMicken, should be Re McMicken.
. Page 204, R. v. De Wolfe, 9 C. C. C. 38, not 78.
Page 207, R. v. Parker, insert R. after 1 C. C.
Page 251, R. v. O'Hearn, should be R. v. O'Hearon.
Page 252, R. v. Fry, 67 L. J. Q. B. 712 instead of 67.
Page 259, second paragraph, strike out R. v. Rideliough, 12
C. C. C. 360.
Page 265, read Smith v. Moody, [1903] instead of [1893].
Page 332, fifth paragraph, 4 Q. R. should be 4 Q. B.
Page 333, third paragraph, read 40 U. C. R. 76, not 46.
Page 343, second last paragraph, read McLellan for Mc-
Lennan.
Page 348, R. v. Whalen should be R. v. Wehlan.
Page 351, first paragraph, 1 Q. R. should be 1 Q. B.
Page 428, R. v. Beaudoin, 22 C. C. C. 312 should be 319.
TABLE OF CONTENTS
CHAPTER I. PAQE
Introduction 1
CHAPTER II.
The Criminal Code and Procedure Thereunder 32
CHAPTER III.
Jurisdiction of Justices in General 73
CHAPTER IV.
Responsibility of Justices and Remedies against them 90
CHAPTER V.
Information and Complaint 114
CHAPTER VI.
Summons and Warrant of Arrest 139
CHAPTER VII.
Preliminary Inquiry 176
CHAPTER VIII.
Summary Convictions 237
CHAPTER IX.
Liquor License Laws and Canada Temperance Act 360
CHAPTER X.
Sunday Observance Laws, Lord's Day Acts 374
CHAPTER XI.
Summary Trial of Indictable Offences 380
CHAPTER XII.
Habeas Corpus 456
CHAPTER XIIL
Certiorari 487
VI TABLE OF CONTENTS.
CHAPTER XIV. PAGE
Evidence 538
CHAPTER XV.
Limitation of Prosecutions and Actions 550
CHAPTER XVI.
Arrests without Warrant 553
CHAPTER XVII.
Forms appended to Code 558
Appendices containing other Forms 596
TABLE OF CASES.
PAGE
— R. v., R. & R. 489 280
A. & N. R. v., (16 C. C. C.
381)" 48
A. B.. Re, (9 C. C. C. 390)
460, 463
Aberdare Local Board v. Ham-
mett, (L. R. 10 Q. B. 162;
44 L. J. M. C. 49) 48
Ackers, R. v., (No. 3), (16 C.
C. C 222) 239, 484
Ackerson, R. v., (20 C. C. C.
245) 347
Adams, R. v., (24 N. S. R.
559) 124, 281
Adams, R. v., (1 Bum's Justice,
379) 236
Addison, R. v., (17 O. R. 729) 511
Agnew V. Stuart, (21 U. C. R.
396) 90
Ah Gin, R. v., (2 B. C. R.
207) 511
Ah Wooey, R. v., (8 C. C. C.
25) 202
Ah Tin, R. v., (No. 1), (6 C.
C. C. 68) 332, 341
Aikins v. Simpson, (18 C. C. C.
99; 19 C. C. C. 325) ...105, 107
Akerman, R. v., (1 B, C. R.,
pt. 1, 255) 281
Albertie, R. v., (3 C. C. C. 356) 376
Aldrich v. Humphrey, (29 O. R.
427) 99
Alexander, R. v., (17 P. R. 458)
262, 263
Alexander, R. v., (21 C. C. C.
473) 401, 506
Alford, R. v., (10 C. C. C. 61)
325 493
Allen, R. v., (15 East 333) . .'
341, 489
Allen, R. v., (4 B. & S. 915 ; 33
L. J. M. C. 98) 515
Allerton, R. v., (22 C. C. C.
273) 109
Allingham, R. v., (21 C. C. C.
268) 494
Allington, R. v., (1 Stra. 678) 142
Allinson v. General Council,
[1894] 1 Q. B. 750 81
Alward, R. v., (25 O. R. 519)
1 34 245
Ames, R. v., (10 C. C. C. 52)'
396, 469, 497
Amey v. Long, (9 East 485) . 1S8
Amyot, R. v., (11 C. C C. 232) 111
Anderson and Kinrade, Re, (14
C. C. C. 448) 498
PAGE
Anderson, R. v., (10 C. €. C.
144) 377
Anderson v. Wilson, (25 O. R.
91) 95, 120, 137
Anon, (Salk. 349) 466
Antrim, J J., R. v., [1895] 2 Ir.
R. 603 79, 82, 499
Apple ton V. Lepper, (20 O. P.
138) 119
Arbuckle v. Taylor, (3 Dow's
,Rep. 160) ....197, 198
Archamboult, Ex parte, (16 C.
C. C 433) 143
Archibald, R. v., (4 C. C. C.
159) 400
Armour v. Boswell, (6 O. S.
153, 352, 450) 249
Armstrong v. Bowes, (12 C. P.
539) 100
Arnold, R. v., (5 T. R. 353) ... 279
(Arnoldi, R. v., (23 O. R. 201) . 39
Arrowsmith, R. v., (2 Dowl. &
Dowl. 704) 102
Arrowsmith v. Le Mesurier, (2
B. & P. N. R. 211) 163
Arscott, R. v., (9 O. R. 541) . . 347
Arscott V. Lilley, (11 O. R. 153,
285; 14 A. R. 283)
92, 101, 347
Arton, Re, [1896] 1 Q. B. .509. 470
Ashcroft, R. v., (2 C. C. C.
385) 348
Ashcroft V. Tyson, (17 P. R.
42) 102
Aspinall, R. v., (2 Q. B. D.
60) 68
Atkinson, R. v., (18 C. C. C.
279) 364, 431
Atkinson v, Jameson, (5 T. R.
25) 145
Attorney-General o'f Manitoba
V. Manitoba License Holders'
Assn., [1902] A. C. 73 4
Attorney-General of Ontario v,
Hamilton Street Ry., [1903]
A. C. 524; 7 C. C. C. 326
4, 38, 378
Attorney-General of Ontario v.
Attorney-'General of Canada,
[1896] A. C. 348 4
Attorney-General v. Kwok A.
Sing, (L. R. 5 P. C. App.
201) 473
Attornev-General v. Siddon, (1
C. & J. 220) 244
Attwood, R. v., (20 O. R. 574) 220
VIU
TABI<E OF GASES.
FAOE
Atwood V. Rosser, (30 C. P.
628) 105
Aiidet V. Doyon, (21 Q. L. R.
21) Ill
Audette v. Daniel, (21 C. C. C.
403) 38, 379
Austin, R. v., (10 C. C. C. 34)
134, 245, 275
Aves, R. v., (24 L. T. R. 64) . 152
Aveson v. Kinnaird, (6 East.
188) 220
Ayer, R. v., (14 C. C. C. 210) 361
Ayotte, R. v., (9 C. C. C. 133) . 194
Back V. Holmes, (16 Cox 268) 56
Badger, R. v., (6 El. & Bl. 137) 47
Badger, R. v., (4 Q. B. 468) . . 103
Bagg V. Colquhoun, [1904] 1 K.
B. 5^6 l&l
Bagley q. t. v. Ourtis, (15 C P.
366) 105
Bailiffs of Eye, R. v., (4 B. &
Aid. 271) ?(52
Baird, R. v., (13 C. C. C. 240)
323 326
Ball V. Eraser, (18 U. C. r!
100) 105
Balser, Ex jiarte, (27 N. B. R.
40) 144
Bank o'f Montreal v. Gilchrist,
(6 A. R. 659) 83
Bank of N. S. W. v. Piper, (66
L. J. P. C. 76) 48
Baptiste. Paul. Re, (No. 1), (20
C. C. C. 159) 238
Baptiste, Paul, Re, (No. 2). (20
C. C. C. 161) 119, 2.38, 2.52
Barber, R. v., (23 O. L. R. 373) 501
Barker v. Davis (34 L. J. M. C.
140) 348
Barlow, R. v., (2 Salk. 609) . . 262
Barnes, R. v., (4 M. R. 448) . . 224
Barnes, R. v., (19 C, C. C. 465) 410
Barre, Re, v., (11 C. C. €. 1)
424 480
Barrett. R. v., (1 Salk. 383) . .' 124
Barrett's Bail, Re, (7 C. C. C.
1) 236
Barron, Re, (4 C. C C. 465) . . 146
Barronet, 72c, (1 E. & B. 1) . .
200, 232
Barsnlou, R. v., (4 C. C. C.
347) 50
Barsky v. Serling, (19 C. C. C.
468) 193
Bartels, Re, (13 C. C. C. 59) 482
Barthelemy, Re, (1 E. & B. 8) 231
Bartholomew v. Wiseman, (56
J. P. 455) 246, 266
Barthos. R. v., (17 O. C. C. 459) 276
Barton, R. v.. (13 Q. B. 389) 429
Barton v. Bricknell, (13 Q. B.
3,93) 93, 429
Basingstoke, R. v., (19 L. J. M.
C. 28) 515
PAGE
Baskett, R. v., (6 C. C. C. 61) l93
Baston v. Carew, (5 D. & R.
558) 341
Bate, R. v., (11 Cox 686) 215
Bates, Re, (40 U. C. R. 284) . . 285
Bates V. Walsh, (6 U. C. R.
498) 100
Bathews v. 'Galindo, (1 M. &
Payne 565) 543
Batson, Ex parte, (10 C. C. C.
240) 364
Batson, R. v., (12 €. C. C. 62)
81, 364
Battoms, R. v., (1 East 303) . .
489, 491
Battye v. Gresley, (8 East 319)
158, 240
Baxter v. Gordon, (13 O. I.. R.
598) 184
Baynes, R. v., (2 Salk. 680).. 117
Beagan, R. v., (No. 1), (6 C.
C. C. 54) 508
Beagan, R. v., (No. 2), (36 N.
S. R. 208, G C. C. C. 56) .270, 300
Beamish, R. v., (5 €. C. C.
388) 32.% 469
Beardmore, R. v., (7 C. & P.
497) 200
Beardsley, R. v., (18 C. C. C.
389) 49
Beattv V. Gillbanks, (9 Q. B.
D. "308, 15 Cox 138) 56
Beaudoin, R. v., (22 C. C. C.
319 223, 428
Beaudry v. Lafontaine, (Q. R.
17 S. 0. 396) 112
Beaver, R. v., (9 C. C. C. 415,
9 O. L. R. 418) 49
Becker, R. v., (20 O. R. 676) 345
Beckwith. R. v., (7 C. C. C.
450) 138, 265. 416
Beddingfield, R. v., (14 Cox
341) 220
Beemer, R. v., (15 O. R. 266) .
73, 125
Beland v. Boyce, (21 C. C. C.
421) 117
Belanger & Mulvena, (Q. R. 22
S. C. 37) 222
Bellefontaine, R. v., (22 C. C.
C. 140) 323
Belmont. R. v., (23 C.C.C. 89) 505
Benn, R. v., (6 T. R. 198) . .
141, 1,53
Benner, R. v., (8 C. C. C 398)
74, 401, 447
Bennett, R. v.. (3 O. R. 45)
105. 255. 415
Bennett, R. v., (5 C. C. C.
456) 508
Bennett v. Watson, (3 M. & Sel.
1) 194
Berkley, R. v., (1 Ken. 81,103) 487
Berrigan, R. v., (17 C. C. C.
329) 301
TABLE OF CASES.
IX
PAGE
Berry, R. v., (9 P. R. 123) ... 173
Bertin, Ex parte, (10 C. C. C.
65) 428, 497
Bertrand v. Angers, (.Q. R. 21
S. C. 213 185
Bessela v. Sterm, (2 C. P. D.
267) 205
Bestwick v. Bell, (1 Terr. L. R.
193) 3.35
Betchell, R. v., (19 C. C. C.
423) 205
Bethel, R. v., (5 Mod. 19) .467, 481
Bevan, R. v., (20 C. C. C. 237) 367
Beveridge v. Minter, (1 C. & P.
3^\ 542
Bibby, R.' V.,' (6 M.' R.'472 j '..'.'.
281, 301
Biddinger, R. v., (22 C. C. C.
217) 109
Bigelow, R. v., (31 N. S. R.
436) 518
Bigelow, R. v., (9 C. C. C. 322) 370
Biggins Ex parte, (26 J. P.
244) 244
Biggins, R. v., (5 L. T. 605) . . 257
Bird, R. v., (5 Cox's C. C. 20) 117
Birnie, R. v., (1 Mood. & R.
160, 5 C. & P. 206) 94, 117
Bishop, Ex parte, (1 C. C. C.
118) 312
Bishop of Chester, R. v., (1 T.
R. 396) 108
Bishop, R. v., (1 Chit. C. L.
99, 1 Stra. 9) 233
Black, R. v., (8 C. C C. 465) . 460
Blackawton, R. v., (10 B. & C.
792) 3.34
Blair. Re, E. G., (23 N. S.
R. 225) 480
Blais, R. v., (10 C. C. C. 354)
62, 530
Blake. R. v., (6 Q. B. 126, 13
L. J. M. C. 131) 68
Blank, R. v., (10 C. C. C. 358) 367
Blanshard, R. v., (18 L. J. M.
C. 110) 96
Blatch V. Archer. (Cowper 66) 161
Bloom. R. v., (15 D. L. R. 484.
22 C. C. C. 205).. 85, 240.
244 291
Bloxam, R. v., (1 A. & E. 386)' 5l5
Blucher. R. v., (7 C. C. C. 278) 476
Blythe, R. v., (1 C. C. C. 284) 86
Blythe, R. v., (15 C. C. C. 224)
46, 51, 419
Bole, R. v., (9 C. C. C. 500) . . 236
Bolton, R. v.. (1 Q. B. 66) .489. 490
Bombardier, R. v., (11 C. C. C.
216) 452
Ronaker v. Evans, (16 Q. B.
162) 143
Bond, R. v., (4 Cox 231) 213
Bond, R. v., (39 C. C. C. 96,
21. M. R. 366) 414
Bond V. Conmee, (15 O. R.
716, 16 A. R. 398).. 92, 99, 280
Bonin, R. v., (20 C. C. C. 180) 401
Bonnevie, R. v., (10 C. C. C.
376) 431
Boomer, R. v., (13 C. C. C 98)
253 325
Borron, R. v., (3 B. & Aid!
432) 103
Bosley v. Da vies, (1 Q. B. D.
84) 244
Both well V. Burnside, (4 C. C.
C. 450) 323, 345
Bouchard, R. v., (20 C. C. C.
95) 47, 184, 195, 262
Boucher, In re, (Cassells' Dig.
325 ) 458
Boughey,' R." v.',* (i' T. R. '281) '. 515
Bougie, R. v., (3 C. C. C. 487)
306, 444, 473
Boultbee, R. v., (4 A. & E. 498) 491
Boutilier, R. v., (8 C. C. C. 82)
124 243
Bowack, Re, (2 B. C. R. 222)' 474
Bowers, R. v., (6 C. C. C. 100) 475
Bowers, R. v., (No. 2), (6 C.
C. C. 264) 404, 445
Bowman, R. v., (2 C. C. C. 89)
344 507
Bowman v. Blyth, (7 E. & b!
26) 106
Boyce, Ex parte, (24 N. B. R.
347) 118,121,144, 245
Bo.vle v. Sacker, (39 Oh. Div.
249) 151
Brackenbury, R. v., (17 Cox
628) 218
Bracey's Case, (1 Salk. 349) . . 240
Bradlaugh, R. v., (3 Q. B. D.
509) 281, 489
Bradley, R. v., (10 Mod. 155) 133
Bradley, R. v., (63 L. J. M. C.
183, 17 Cox 739) 151, 281
Bradley. R. v., (19 C. C. C. 110) 369
Brady, R. v., (12 O. R. 358) . . 501
Brady, Re, (21 C. C. C. 123) . . 276
Brailsford, R. v., [1905] 2 K.
B. 730 70
Brazill v. Johns, (24 O. R. 209) 113
Bready v. Robertson, (14 P. R.
7) 102
Breckenridge, R. v., (6 O. W.
R. .501, 10 O. L. R. 439, 10 C.
C. C. 180) 287, 352
Brecknockshire, R. v. JJ. of,
(42 L. J. M. C. 135 515
Breen, R. v., (8 C. C. C. 146) . .
110. 124, 243
Brennan v. Hatelie, (6 O. S.
308) 93
Brickhall. R. v., (33 L. J. M.
C. 156) 265
Bridges v. Hawksworth, (18 L.
T. (O.S.) 154, 21 L. J. Q. B.
75) 440
TABLE OF CASES.
FAGE
Brimacombe, R. v., (10 C. C. C.
168) 333
Brindley, R. v., (12 C, C. C.
170) 287, 298
Brine, R. v., (8 C. C. C. 54)
186. 267
Brisbois, R. v., (13 C. C. C. 96) 482
Bristol, R. v., (18 Jur. 426n.) 96
Brittain v. Kinnaird, (1 B. &
B. 432) 90
Broad v, Perkins, (21 Q. B. D.
533) 112
Broadfoot, R. v., (17 C. C. C
Y j^ \ 257 482
Broderip.* ' R. ' V.,' "( 5 b! & C. 239 )' 108
Brook, R. v., (7 C. C. C. 216) 322
Brooker, R. v., (22 C. C. C,
146) 376
Brookes v. Warren, (2 Bla.
Rep. 1273) 145
Brooks. R. v., (11 C. C. C. 188) 416
Brooks V. Mason, [1902] 2 K.
B. 743, 72 L. J. K. B. 19. . . 48
Broom, Re, (18 C. C. C 254) 110
Bros, R. v., (85 L. T. 581) .... 141
Bross V. Huber, (15 U. C. R.
625) 100
Bross V. Huber, (18 U. C. R.
282) 98, 99
Brouse, R. v., (21 C. C. C. 17) 267
Brown, R. v., (1 Terr. L. R.
475) 51
Brown, R. v., (24 Q. B. D.
377) 64
Brown, R. v., (16 O. R. 41) . .
82 303
Brown, R. v., (23 N. S. R. 21)' 85
Brown, R. v., [1895] 1 K. B.
119 Ill, 179, 223, 415
Brown v. Dalby, (7 U. C. R.
162) 37
Browne, R. v., (14 C. C. €.
247) 51
Browne, R. v., (13 Q. B. 653) 96
Bruce. R. v., (12 C. C. C. 275)
217, 220
Bryne v. Arnold, (24 N. B. R.
161) 186
Bryson, R. v., (10 C. C. C.
398) 333
Buchanan, Re, (22 C. C. C.
199) 112
Buchanan, R. v., (12 M. R.
190) 297
Buckinghamshire, R. v. JJ. of,
(4 E. & B. 260) 334
Buckmaster v. Reynolds, (13 C.
B. N. S. 62) 356, 357
Budd, Ex parte, (17 C. C. C.
235 \ 259
Budden, R."v.,"(66' j.'p! 160) 78
Bullivant v. Atty.-Gen. 'for Vic-
toria, [1901] A. C. 201 . . . 544
Bullock. R. v., (cited in 1 Mood
324 (n) ) 130
PAGE
Bullock, R. v., (8 C. C. C. 8) . 253
Burdett, R. v., (4 B. & Aid. 95) 88
Burdett v. Abbot, (14 East.
157) 164
Burke, R. v., (1 C. C. C. 539) 471
Burke, R. v., (5 C. C. C. 29) .
87, 131. 140
Burke, R. v. (No. 1). (7 C C,
C. 538) 511
Burke, R. v. (No.. 2), (8 C. C.
C 14) 252
Burke, R. v., (19 C. C. C. 141)
182 222
Burke, R. v., (24 O. R. 64) . .' 229
Bum, R. V . (7 A. & E. 190) . . 102
Bumaby, R. v., (1 Salk. 181)
82. 264
Bumaby, R. v., (2 Ld. Raym.
900) 278
Bumey v. Gorham, (1 C. P.
358) 93
Bums' Bail, (Re, (17 C. C. C.
292) 195, 264
Burns, R. v., (16 Cox 355) .. 56
Bums, R. V. (No. 1), (4 C. C.
C. 323) 419
Bums (No. 2), R. v., (4 C. C.
C. 330) 403. 447
Burr, R. v.. (12 C. C. C. 103) 421
Burton. R. v., (3 F. & F. 772) 46
Burton, R. v., (32 L. T. 539, 13
Cox 71) 244
Burtress, R. v., (3 C C. C.
536) 285, 410, 425, 450, 521
Bustard v. Schofield, (4 O. S.
11) 103
Butter, R. v., (32 C. L. J. 594)
271, 281
Butterfield, R. v., (15 C. C. C.
101 252, 366
Byng, R. v., (18 C. C. C. 344) 362
Byrne, Ex parte, (22 N. B. R.
427) 474
Cadden, R. v., (4 Terr. L. R.
119 ; 5 C. C. C. 45) 50
Cahoon. R. v., (17 C. C. C. 659) 362
Caister. R. v., (30 U. C. R.
247) 271
Callaehan, R. v.. (8 C. C. C.
143) 419
Cambridge, R. v.. (1 Stra. 557) 141
Cambridgeshire. R. v. JJ. of,
(3 B. & A. 887) 517
Cambridgeshire, R. v. JJ. of.
(44 J. P. 168) 257
Cameron, R. v., (1 C. C. C. 169)
39 233
Cameron. R. v., (4 C. C. C.
385) 182. 404
Campbell. Ex parte, (26 N. B.
R. 590) 149
Campbell. R. v., (2 C. C. C.
3.57) 61
TABLE OF CASES.
XI
PAGE
Campbell, R. v., (10 C. C. C.
326) 225
Campbell, R. v., (20 C. C. C.
490) 373
Campbell v. Mcintosh, (1 P. E.
I. R. 423) 80
Campbell v. Walsh, (18 C. C.
C. 304) 81, 98, 127, 140
Can. Pac. Ry. Co., R. v., (12
C. C. C 549) 374
Can. Pac. Ry. Co., R. v., (14 C.
C. C. 1; 8 W. L. R. 825; 1
l\lta. L. R. 341 87, 129
Canadian Prisoners' Case, (5
M. & W. 32) 460
Canadian Society v. Lauzon, (4
C. C. C. 354) 323
Cantillon, R. v., (19 O. R. 197) 271
Carlile, R. v., (3 B. & Aid.
161) 42
Carlin, R. v., (No. 2) (6 C. C
C. 507; Q. R. 12 K. B.483) 70
Carlisle, R. v., (7 C. C. C. 470) 477
Carmichael, Ex parte, (8 C C
C. 19) 269, 270, 404
Carmichael, Re, (1 C. L. J.
243) 461
Carmichael, Re, (10 U. C. L.
J. 325) 468
Carr, R. v., (52 L. J. M. C. 12) 170
Carrick-on-Suir, R. v. JJ. of,
(16 Cox 571) ...vs. ...151, 152
Carrigan, R. v., (17 C L. T.
Occ. N. 224) 147
Carroll, R. v., (7 C. & P. 145) 45
Carroll, R. v., (14 C. C. C. 338) 499
Carter, R. v., (5 C. C C. 401)
444, 474
Cartworth, R. v., (5 Q. B.201)
516, 517
Carvery, R. v., (11 C. C. C. 331) 44
Case, R. v., (No. 1), (7 C. C.
C. 204) 108
Case, R. v., (No. 2) (7 C. C.
C. 212) 108
Casson, Ex parte, (2 C. C. C.
483) 309
Catherall, R. v., (2 Stra. 900)
278 290
Cattley v. Loundes, (34 W. r!
139) 440
Caudle v. Seymour, (1 Q. B.
889) 94, 119, 158
Cave V. Mountain, (1 M. & G.
257, 264) 143
Cavelier, R. v., (ICC C 134;
11 M. R. 333) . .145, 167, 461, 472
Cawston, The King v., (4 Dowl.
& Ry. 445) 505
Central Criminal Court, R. v.
J J. of, (17 Q. B. D. 598) . . 440
Central Supply Assn., R. v., (12
C. 0. C 371) 70
PAGE
Chamberlain v. King, (L. R. 6
C P. 474) 98
Chambers v. Green, (L. R. 20
Eg. 552) lis
Chandler, R. v., (14 East 267) 147
Chaney, R. v., (6 Dowl. 281) . 492
Chapman and City of London,
Re, (19 O. R. 33) 150
Chapman, R. v., (1 O. R. 582) 80
Chappie, R. v.. (9 C & P. 353) 63
Charron, R. v., (15 C. C C
241) 378
Charter v. Greame, (13 Q. B.
216) 277
CSieltenham Commissioners, R.
v., (1 Q. B. 467) 79, 490
Chetwynd, R. y., (23 N. S. R.
332) 193
Chew Deb, R. v., (21 C C C
20) 41, 260
Chicoyne, R. v., (8 C. C C
507) 369
Child, R. v., (4 C & P. 442) . . 57
Ching, How, Re, (19 C. C C.
176) •• 506
(}hinn v. Morris, (2 C. & P.
361) • 163
Chipman, R. v., (1 C. C C.81)
_ 112, 280
Chisholm v. Doulton, (22 Q. B.
D. 736) 48
Chisholm, R. v., (14 C C. C
15) 51
Chitnita, R. v., (22 C C. C
344) 137, 286
Choney, R. v., (17 M. R. 469 ;
13 C C C 289) 219
Christie v. Cooper, (60 L. T.
708) 48
Christopher v. Croll, (16 Q. B.
D. ^) 330
Church, Ex parte, (14 L. C. R.
318) 149
Citizens' Ins. Co. v. Parsons,
(7 App. Cas. 96) 4
City of London, R. v., (32 O.
R. 326) 150
City of Montreal v. Fortier, (6
C C C 340) 375
aark, R. v., (1 B. & B. 4737- 40
Clark, R. v., (5 C. C C. 235) . 543
Clark, R. v., (9 C C. C 125) . 451
Clark, R. v., (No. 1) (12 C C.
C. 17) 308
Clark, R. v., (No. 2) (12 C C
C 485) 124, 243
Clarke and Heermans, Re, (7
U. C R. 225) 249
Clarke, In re, (6 Jur. 757) . . .
466, 468
Clarke, R. v., (12 C. C. C 300) 423
Clarke, R. v., (12 C C. C485) 263
Clarke, R. v., (No. 1) (14 C
C C 46) 71
Xll
TABLE OP CASES.
PAGE
ClaAe, R. v., (No. 2) (14 C.
C. C. 57: 9 W. L. R. 243;
1 Alta. L. R. 358) 71
Qarke, R. v., (20 C. C. C. 486) 367
Qarke. R. v., (19 O. R. 601) 153
Qarke, R. v., (20 O. R. 642)
82, 152
Qarke v. Rutherford, (5 C. C.
C. 13) 298
Clarkson, R. v., (17 Cox 483) 56
Clee and Osborne, Re, (21 L. J.
M. C. 112) 96, 244
Clemens, R. v., [1898] 1 Q. B.
g5g 242
Clements, R. v., (4 C. C. C.
553) 189, 474
Qennan, R. v., (8 P. R. 418) . . 2T9
Clermont v. Lagace, (2 C. C C.
1) 297
Clewes, R. v., (4 C. & P. 221) . 541
Qoutier, R. v., (2 C. C. C. 43) 161
Cluff, R. v., (46 U. C. R. 565) 514
Cockshutt, R. Y., (19 Cox 3)
[1898] 1 Q. B. 582 409
Code, R. v., (13 C. C. C. 372)
275 302
Cody, R. v., (23 C. C. C. 211)' 132
Coffon, Ex parte, (11 C. C.
C. 48) 121,144,160, 245
Cohen, Ex parte, (8 C. C. C.
312) 470
Cohen, Re, (8 C. C. C. 251) . . 470
Cohen, R. v., (11 Cox 99) ... 52
C(Aen V. Morgan, (6 D. & R. 8) 208
Cohen's Bail, Re, (16 C. L. T.
Occ. N. 217) 226
Colahan, R. v., (12 C. C. C.
283) 307
Colchester, R. v., (20 L. J. M.
C. 203) 516
Cole, R. v., (5 C. C. C. 330)
39, 42, 234
Cole V. Hindson, (6 T. R. 234) 157
Coles V. Coles, (L. R. 1 P. &
D. 70) 546
CoUette V. R., (16 C. C. C.'281)
343, 347, 506
Collier v. Hicks. (2 B. & Ad.
663) 19S
Collins, R. v.. (L. & C. 471; 3;?
L. J. M. C. 177) 64
Collins, R. v., (21 L. J. ^I. C.
73) 96
Collins, R. v., (14 O. R. 613) 261
Collins, R. v.. (5 M. R. 136) . . 471
Collins V. Homing, (6 C. C. C.
514) 344
Collins V. Rose, (5 M. & W.
104) 97
Colonial Bank of Australia v.
Willan. (L. R. 5 P. C. 417) 490
Commins, R. v.. f4 D. & R. M.
C. 94 ; 8 D. & R. 344)
177, 188, 198
Commissioners of Excise, R. v.,
(2 T. R. 385) 107
Compton, R. V., (3 C. & P. 418) 422
Coney, R. v., (8 Q. B. D. 534) 297
Conlin, R. v., (1 C. C. C. 41)
384 401
Connelly, R. v., (1 C. C. c!
468; 25 O. R. 151) 69
Connors, R. v., (5 C. C. C. 70) 540
Connors v. Darling, (23 U. C.
R. 541) 95, 119, 200
Conway. R. v.. (7 C C. C. 129) 409
Cook, Ex parte, John, (3 C. C.
C. 72) 395, 413
Cook, R. ^., (14 C. C. C. 495 ;
18 O. L. R. 415) 498
Cook, R. v., (15 C. C. C. 40) 52
Cook, R. v., (16 C. C. C. 234)
285, 506
Cook, R. v., (20 C. C. C. 201) 367
Cook, B. v., (22 C. C. C. 241) 217
Cooke, R. v., (1 C. & P. 322) . . 192
Cooksley v. Toomaten Oota, (5
C. C. C. 26) 331
Coolen, R. v., (7 C. C. O. 522) 403
Coolen (Frank), R. v., (8 C. C.
C. 157) 130, 404, 413, 423
Cooper, Re, (5 P. R. 256) ..
167, 172
Coote, R. v., (L. R. 4 P. C,
599) 214
Coote, r". "v.", ' ( 17 "C.* *C. C.' 211)" 364
Corbett, R. v., (2 C. C. C.499) 307
Corcoran, R. v., (26 C. P. 134) 57
Cormier, Ex parte, (12 C. C. C.
339) 145
Cormier, Ex parte, (17 C. C. C.
179) 85, 86
Cornwall v. Sanders, (3 B. &
S. 206) 351, 354
Corrigan, Ex parte, (2 C. C. C.
591) 280. 473
Corrigan, R. v., (15 C. C. C.
310) .^ 406
Cortis V. Kent Waterworks Co.,
(7 B. & C. 314) 321
Costar V. Hetherington, (1 E. &
E. 802) 297
Cote, R. v., (8 C. C. C. 393) . . 478
Cotterill v. Lempriere, (24 Q. B.
639) 276
Coulombe, R. v., (20 C. C. C.
31) 52
Coulson, R. v., (24 O. R. 246;
1 C. C. C. 114) ...27.3, 274, 501
Coulson, R. v., (27 O. R. .59) 501
Coursey, R. v., (27 O. R. 181) 112
Cowan, Ex parte, (9 C. C C.
454) 324, 493
Cox, R. V. (16 O. R. 228) 233
Cox, R. v., (14 Q. B. D. 153) 544
Cox V. Coleridge, (1 B. & C. 37) 198
Cox V. Hakes, (15 u\. C. 506)
474, 479
TABLE OF CASES.
XUl
PAGE
Cozens, R. v., (2 Doug. 426) . . 102
Crabb v. Longworth, (4 C. P.
283) 100
Cragg V. Lamarsh, (4 C. C. C.
246) 330, 335
Craig, R. v., (10 C. C. C. 249)
149 154 254
Craig, R. v., (21 TJ. C. R.' 552)' 285
Crandall, R. v., (27 O. R. 63)
506, 508
Crandell v. Nott, (30 C. P. 63) 9
Crawford, R. v., (20 C. C. C.
49) 185, 428, 506
Crawford, R. v., (21 C. C. C.
70) 253, 440
Crawford v. Beattie, (39 U. C.
R. 13) 95, 119. 200
Cready v. Lindsay, (3 A. C. 459) 440
Crepps V. Durden, (2 Cowp.
640; 1 Sm. Lead. Cas. (11th
Ed.) 651) 90
Cridland, R. v., (7 El. & Bl.
853) 82, 83, 244
Crofts, R. v., (2 iStr. 1120) .. . 244
Cronkhite v. Sommerville, (3 IT.
C. R. 129) 99
Crooks, R. v., (19 C. C. C. 150) 410
Cropper v. Horton, (4 D. &. R.
M. C. 42; 8 D. & R. 167)
188, 194
Cross, Ex parte, (26 L. J. M.
C. 201) 466
Cross, R. v., (14 C. C. C. 171) 117
Cross V. Wilcox, (39 U. C. R.
187) 95
Crossen, R. v., (12 M. R. 571;
3 C. C. C. 152) 386
Crossfield, R. v., (26 How. St.
Tr. .314) 214
Crouch, R. v., (1 Cox 94) .. 46
Crouch, R. v., (35 U. C. R.433)
330 335
Crouse, Re, (No. 1), (21 C. c!
C. 231) 485
Crouse, R. v., (No. 2), (21 C.
C. C. 243) 142, 372
Crowell, R. v., (2 C. C. C. 34)
285, 43B
Crowhurst, R. v., (2 Ld. Raym.
1363) 134
Crowhurst, R. v., (1 C. & K.
370) 221
Crowley, R. v., (16 C. C. C.
373) I 301
Crowther v. Boult, (13 Q. B. D.
680) 357, 358
Cruse, R. v., (8 C. & P. 541) . . 244
Cullen V. Trimble, (L. R. 7 Q.
B. 416; 26 L. T. 691) 2,39
Cummings, R. v., (19 C. C. C
358) 220
Cummings & Carleton, Re, (25
O. R. 607) 110
Cummins v. Moore, (.37 U. C. R.
130) 95
PAGE
Cundy v. Lecocq, (13 Q. B. D.
207) 48
Curran, R. v., ( 22 C. C. C. 388)
341, 363. 365
Currie, R. v., (11 C. C. C. 343) 103
Curry, Ex parte, Thomas, (1 C.
C. C. 5.32) 10
Curry v. R., (22 C. C C. 191 ;
48 S. C. R. 532) 203, 549
Curtley, R. v., (27 U. C. R.
613) 61
Cyr, R. v., (12 P. R. 24) ....
282, 285, 444
Dagenais, R. v., (18 €. C. C.
287) 269, 311
Daigle, Ex parte, (18 C C. C.
211) 81, 287, 308
Daignault v. Emerson, (5 C. C.
C. 534) 79
Daley, Ex parte, (27 N. B. R.
129) 498
Daman, R. v., (1 Chit. 155).. 287
Damboise, Ex parte, (16 C. C.
C. 292) 362, 494
D^Aoust, R. v., (5 C. C. C. 407)
541, 548
Darracq, Re, (19 C. C. C. 483) 470
Darragh, q.t. v. Paterson, (25
C. P. 529) 105
Dart, R. v., (14 Cox C. C. 143) 47
Darton, R. v.. Inhabitants of,
(12 A. & E. 78) 260
Daubney v. Cooper, (10 B. &
C. 277) 198
Daun, R. v., (11 C. C. C. 244) 507
Davey, R. v., (22 C. C. C. 185) 490
Davidson, R. v., (45 U. C. R.
91) 82, 242
Davidson, R. v., (8 M. R. 325) 276
Davidson, R. v., (6 C. C. C.
117) 512
Davidson v. Garrett, (5 C. C.
C. 200) 174
Davies, R. v., (23 C. C. C. 33) 489
Davies, R. v., (5 T. R. 626). 489
Davis. R. v., (14 Cox C C.563) 46
Davis, R. v., (20 C. C. C. 293)
185, 238, 252
Davis, R. v., (6 T. R. 178) . . 268
Davis, R. v., (5 B. & A. 551) 287
Davis, R. v., (22 C. C. C. 34) 410
Davis v. Capper, (10 B. & C.
28) 92, 123, 197, 198
Davitt, R. v., (7 C. C. C. 514) 333
Daw, R. v., (4 C. C. C. 28) . . 84
Da\T. R- v., [1899] 2 Q. B.
307; 80 L. T. 798 356
Dawkins v. Poulet, (L, R. 5 Q.
B. 94) 90
Day, R. v., (20 O. R. 209) . .
219, 220
Day V. King, (5 A. & E. 359)
289, 310
XIV
TABLE OF CASES.
PAOK
Dayman, R. v., (7 E. & B. 672)
96, 110, 490
DayreU, R. v., (1 B. & C. 485) 108
Deakin, R. t., (19 C. C. C. 62)
203 549
Defries, R. v., (1 C. C. C 207;
25 O. R. 645) 69, 472
Began, R. v., (14 C. C. C. 148)
260, 483
Delaney v. McNabb, (21 C. P.
563) 96, 107, 349
Delisle, R. v., (5 C. C. C. 210) 475
Demetrio, R. v., (20 C. C. C.
316) 275, 395, 507
Dempsey v. Dougherty, (7 U.
C. R. 313) 98
Denault v. Robida, (8 C. C. C.
501) 259. 324, 496, 521
Denbighghire, R. v. J J. of, (9
Dowl. P. C. 509) 332
Denny v. Thwaites, (2 Ex, D.
21) 84
Deny, et at., R. v., (20 L. J. M.
C. 189) 268. 490
Derbyshire, R. v. J J. of, (11 W.
R. 780) 242
DevereU, R. v., (3 B. & B. 372) 96
Dewar, Ex parte, (15 C. C. C.
273) 371
Dewhurst, R. v., (5 B, & Ad.
405) 321
De Wolfe, R. v., (9 C. C. C. 38)
65, 204
Deybell's Case, (4 B. & Aid.
243) 129
Dias, R. v., (1 C. C. C. 534) . 50
Dibblee, R. v., (32 N. B. R. 242) 147
Dibley, R. v., (2 C. & K. 818) 221
Dick, R. v., (22 C. C. C. 188) 451
Dickenson v. Brown, (Peake's
Rep. 307) 162
Dickenson v. Fletcher, (L. R.
9 C. P. 1, 43 L. J. M. C. 25)
48, 286
Dickey, Re (No. 1), (8 C. C. C.
318 470
Dickey, Re (No. 2), (8 C. C.
C. 321) 470
Dickson v. Crabb, (24 U. C. R.
494) 95
Dimes v. Grand Junction Canal
Co., (3 H. of L. 759) 77
Dion V. Champagne, (18 C. C.
C. 489) 496
Dixon, Ex parte, (7 C. C. C.
336) 278
Dixon, R. V. (2 C. C. C. .589) .'50
Dixon, R. V. (No. 2), (3 C. C.
C. 220) 545
Dixon V. Wills, (25 Q. B. D.
249) 75
Dodd's Case, (2 De G. & J.
510) 485
Doe, Re John, (3 C. C. C. 370) 318
PAGE
Doherty, Ex parte, (1 C. C. C.
84) 151, 155, 255
Doherty, Ex parte, (3 C. C C.
310) 209, 259
Doherty, Ex parte, (5 C. C.
C. 94) 162, 474
Doherty, Ex parte, (25 N. B. R.
38) 331, 332, 333
Doherty, R. v., (16 Cox C C.
306) 45
Doherty, R. v. (3 C. C. C. 505)
251, 300
Doliver Mining Co., R. v., (10
O. C. C. 405) 325, 339
Dominion Athletic Qub, R. v.
(15 C. C. C. 105) 353
Donaldson v. Haley, (13 C. P.
87) 100
Donnelly, Re, (20 C P. 165) . .
129, 274
Donohue v. Recorders' Court,
(18 C. C. C. 182) 282
Donovan, Ex parte, (32 N. B.
R. 374, 3 C. C. C. 286) 146
Dowd, R. v., (4 C. C. C. 170) 61
Dowling, R. v., (17 O. R. 698)
73, 125
Downey. R. v., (7 Q. B. 281) . . 483
Downshire, R. v. (6 N. & M.
105) 289
Doyle, R. v., (12 C. C. C. 69) 319
Doyle V. Bell, (11 A. R. 326) 37
Drake v. Preston, (34 U. C. R.
257) 105
Ehnimmond, R. v. (11 Mod.
200) 320
Drury. R. v., (3 C. & K. 193,
18 L. J. M. C. 189) 40
Dublin, J J.. R. v., [1894] 2 Q.
B. Ir. 527 77
Dubuc, R. v., (15 C. C. C. 353)
327 373
Dubuc, R. v., (22 C. C. C. 426) ' 452
Duclos, Re, (Q. R. 32 S. C. 154,
12 C. C. C. 278) 47
Dueros v. Lamboume, [1907] 1
K. B. 40, 21 Cox 311 62
Dudley Gas Co. v. Warmington,
(50 L. J. M. C. 69, 44 L. T.
4Y5) 244
Duering, R." V.,' (5C. C. C. 135) 87
Duffy, Ex parte, (8 C, C. C.
277) 178, 198
Dufresne, R. v., (19 C. C. C.
414) 120
Duggan, R. v., (21 C. L. T.
Oco. N. 35) 86
Duke of Marlborough, Ex parte,
(5 Q. B. 955) 102
Dungey, R. v. (5 C. C. C. 38K .
180, 182, 198
Dunlap, R. v., (22 C. C. C.
245) 505
Dunn, R. v., (12 A. & E. 599)
316, 319, 466
TABIvE OF CASES.
XV
Durand v. Forrester, (15 C. C.
C. 125 ; 18 M. R. 444) ....
Durlin, R. v., (19 C. C. C.
392)
Durocher, R. v., (21 C. C. C.
382)
Dyer, R. v., (1 Salk. 181)
184
347
42
141
Dyer, R. v., (6 Mod. 41) 153
Ead V. R., (40 S. C. R. 272.. 417
Earley, R. v. (No. 1), (10 C.
C. C. 280) 352
Earley. R. v., (No. 2), (10 C.
C. C. 336) 352
Earley, R. v., (No. 3), (14 C.
C. C. 10) 393
Eastern Counties R. W. Co.,
R. v., (10 A. & E. 531) .... 109
Eastman v. Reid, (6 U. C. R.
611) 94
Eaton. T. Co., R. v., (2 C. C.
{^ 252) 150
Eaton, R. v'.,"(*2 T.* R.' 89)" ! ! 491
Edelston, R. v., (17 C. C C.
155) 329. 345
Edwards, Ex parte, (16 C. C.
C. 522) 406
Edwards, R. v., (5 B. & Ad.
407) 321
Edwards, R. v., (2 C. C. C.
96) 117,124.243. 423
Edwards, R. v., (13 C. C. C.
202) 420. 548
Edwards, R. v., (1 East. 279) . 129
Edwards, R. v., (4 W. R. 287) 242
Eli, R. v., (10 O. R. 727) . .150,
252 494
Eliasoph, R. v., (16 C. C. C.
131) 207
Elliott, R. v., (3 C. C. C. 95)
218 219
Elliott, R. v., (9 C. C. C. 505 :
9 O. L. R. 648) 70
Elliott, R. v., (12 O. R. 524) . .
301 343
Ellis, R. v., (6 B. & C. 145) . .' 541
Elrington, R. v., (31 L. J. M.
C. 14) 297
Emery v. NoUoth, [1903] 2 K.
B. 269, 72 L .J. K. B. 620 48
Emmerson, Ex parte, (1 C. C.
C. 156, 33 N. B. R. 425).. 518
Entrehman, R. v., (Car. & M.
248) 202
Erdheim, R. v., [1896] 2 Q. B.
260 213
Erickson, Ex parte, (31 N. B.
R. 296 : 255
Esdaile, R. v., (1 F. & P. 213) 69
Esop, R. v., (7 C. & P. 456) . . 53
Esser, R. v., (2 East. P. C.
1125) 88
Essery, R. v., (7 P. R. 290) . . 330
PAGE
Ettinger, R. v., (3 C. C. C.
387) .. . .74, 85, 115, 123, 125,
167, 246
Evans, Ex parte, [1894] A. C.
16 86
Evans, R. v., (19 L. J. M. C.
151) 147
Evans, R. v., (62 L. T. 570) ... 195
Evans v. Rees, (12 A. & E. 55) 191
Eveleth, R. v., (5 Allen N. B.
R. 201) 440
Excell, R. v., (20 O. R. 633) . . 301
Exeter, Mayor of, v. Heamon,
(37 L. T. 535) 185
Fallon, R. v., (32 L. J. M. C.
66) 63
Fanning v. Gough, (18 C. C. C.
66) 135, 175
Farmer, R. v., [1892] 1 Q. B.
637 146
Farquar v. Robertson, (13 P.
R. 1.56) 69
Farquharson v. King, [1902]
A. C. 325 440
Farquharson v. Morgan, [1894]
1 Q. B. 552 112
Farrar, R. v., (1 Terr. L. R.
308) 134
Farrell, R. v., (16 C. C. C.
419) 369
Farrell, R. v., (12 C. C. C.
524) 252.263,424, 482
Farwell, R. v., (2 Str. 1209) . . 491
Fawcett v. Fowlis, (7 B, & C.
.394) 90
Fearman," R.' V.,' (22 0.'r.*456)
74, 125
Feinberg, Ex parte, (4 C. C. C.
270) 222, 470
Fellowes, R. v., (19 U. C. R.
48, 58) 69
Fennell. R. v.. (7Q. B. D. 147) 220
Fentiman, Ex parte, (2 A. &
E. 127) 102
Ferguson, Ex parte, (17 C. C.
C. 437) 539
Ferguson, R. v., (11 C. C. C.
277) 352
Ferguson, R. v., (19 C. C. C.
31) 499
Ferguson v. KinnouU, (9 CI. &
Fin. 251) 74
Ferrall, R. v., (20 L. J. M. C.
39) . . : 290
Fielding, R. v., (2 Burr. 720) 102
Finkle, R. v., (15 C. P. 453) . . 220
Finmore R. v., (8 T. R. 409) . . 236
Fisher, Re, (9 C. C. C. 453; 41
C. L. J. 622) 377
Fisher and Village of Carman,
Re. (15 M. R. 475 ; 9 C. C. C.
451) 124, 275
Fitzgerald, R. v., (1 C. C. C.
420; 29 O. R. 203) . . . .223, 288
XVI
TABLE OF CASES.
PAGE
Fitzgerald, R. v., (19 C. C. C.
39) 506
Fitzgerald, R. v., (3 U. C. R.
(O. S.) 300) 231
Fitzpatriok, Ex parte, (5 C. C.
C. 191) 307, 469
Flanagan, Ex parte, (5 C. C. C
82) 18, 38, 41, 452
Flannagan, Ex parte, (2 C. C.
C. 513 ; 34 N. B. R. 326) . .
76, 251, 269
Fleming, R. v., (27 O. R. 122) 77
Fleming. Ex parte, (14 C. L. T.
Occ. N. 106) 146
Fletcher, R. v., (L. R. 1 C. C.
R. 320J 119
Fletcher v. Cal thorp, (6 Q. B.
880) 273
Flick V. Brisbin, (26 O. R. 423) 296
Flintshire, R. v., (10 Jur. 475) 290
Flounders, iJe, (4 B. & A. 865) 516
Flower v. Allen, (2 H. & C.
688) 146
Flvnn, R. v., (9 C. C. C. .550) 395
Foisard's Case, (18 Q. B. D.
314) 440
FoUansby and McArthur, Re,
(Man. R. Temp. Wood. 4) . . 289
Forrest, R. v., (3 T. R. 38).. 240
Forsythe v. Goden, (32 C. L. J.
288, 499) 163
Fortier, Ex parte, (6 C. C. C.
191; Q. R. 13 K. B. 151) .39, 232
Foster, R. v., (6 C. & P. 325) 220
Foster, R. v. (7 C. C. C. 46) 512
Foster's Case, (5 Rep. 59) 170
Foster's Case, (11 Rep. 59) . . 240
Foulkes, Ex parte, (15 M. &
W. 612) 313
Fournier v. Atty.-Gen., (17 C.
C. C. 108) 88
Fowle, R. v., (4 C. & P. 592) 68
Fox, R. v., (7 C. C. C. 457) . .
38, 416
France, R. v., (1 C. C. C. 321)
118. 135, 184. 394, 395, 416
Frances, R. v., (4 Cox 57) . . 46
Franey, R. v., (16 C. C. C. 441) 147
Frank, R. v., (16 C. C. C. 237) 205
Fraser, R. v., (20 C. C. C. 167)
367, 477
Fraser v. McKenzie, (28 IT. C.
R. 255) 9
Frawley, R. v., (1 C. C. C. 253;
25 O. R. 431) 70
Freeman v. Reid, (9 C. B. N.
S. 301) 346
Frejd, R. v., (18 C. C. C. 110) 481
French, R. v., (13 O. R. 80).. 261
Friel v. Ferguson, (15 C. P.
583) 98, 120, 159
Frizell, R. v., (22 C. C. C. 214)
308, 361
Fry, R. v., (19 Cox 135; 67
L. J. Q. B. 712) 252, 253
PAGE
Fry V. Moore, (5 Q. B. D. 395) 151
Fuerst, R. v., (22 C. C. C. 183)
410, 482
Fullarton v. Switzer, (13 U. C.
R. 575) 319
Fuller, R. v., (2 D. & L. 98) 242
Fuller, R. v., (1 Ld. Raym. 509)
117, 122, 1.34
Fulton, R. v., (5 C. C. C. 36) 416
Fursey. R. v., (1883) St. Tr.
(N.S.) 543; 6 O. .& P. 81 ..
56, 57
Gae-e, ,R. v. (No. 1), (13 C. C.
C. 415) 71
Gage, R. v. (No. 2), (13 C. C.
C. 428: 7 W. L. R. 564; 18
M. R. 175) 71
Galbraith, R. v., (6 M. R. 14) 495
Gallagher, Ex parte, (14 C. C.
C. 38) 81, 259
Gallagher. R. v.. (7 Ir. C. L. R.
19) 233
Gallagher, R. v., (18 C. C. C.
.347) 494
Galloway, R. v., (15 C. C. C.
317 ; 11 W. T.. R. 673) 486
Garbutt, Re, (21 O. R. 179) . . 479
Garland. Ex parte, (8 C. C. C.
385) 145, 167, 226
Gamer v. Coleman, (19 C. P.
106) 90
Gates, Re, (8 C. C. C. 249) 470
Gaul V. EUice, (6 C. C. C. 15)
161, 300
Gavin, R. v., (1 C. C. C. 59;
30 N. S. R. 162) . .287, 298, 425
Gay V. Mathews, (33 L. J. M.
C. 14) 345
Gaynor and Greene (No. 3),
Re, (9 C. C. C. 205) 70
Gaynor and Greene. Re, (No.
8), (9 C. C. C. 496) 468
Gaynor and Greene (No. 9), R.
v., (9 C. C. C. 542) 475
Geering, R. v., (18 L. J. M.
C. 215) 541
Gehrke, R. v., (11 C. C. C.
109) 348, 497
Geiser, R. v., (5 C. C. C. 154) 355
Geiser, R. v., (No. 2), (7 C. C.
C. 172) 511
Gelan v. Hall, (27 L. J. M. C.
78) 92
Genner v. Sparkles, (1 Salk.
79) 162
Genz, R. v., (22 C. C. C. 110) 372
Geswood, Re, (2 E. & B. 952) . 273
Gibbs, R. v., (1 Str. 497)... 278
Giberson, Ex parte, (4 C. C. C.
537) 119. 159
Giberson, Ex parte (No. 1), (16
C. C. C. 66) 291
Giberson, Ex parte, (18 C. C.
C. 355) 252, 262, 263, 490
TABLE OF CASES.
XVU
PAGE
Gibson, R. v.. (2 C. C. C. 302)
274, 404, 428, 472, 521
Gibson, R. v., (3 C. C. C. 451)
10 180, 227
Gibson, R. v., (16 O. R. 704) 70
Gibson, R. v., (18 Q. B. D.
537) 41G
Gidney v. Dibblee, (15 N. B.
R. 388) 101
Gilbert, Ex parte, (10 C. C. C.
3§\ ]^09
Gilbert v." The king,' "(38 sV C
R. 284) 220
Gill, R. v., (2 B. & Aid. 204) . . 68
Gill. R. v., (14 C. C. C. 294) 411
Gillespie, R. v., (16 P. R. 155) 342
Gillespie, R. v.. (1 C. C. O.
551) 471
Gillespie, R. v., (No. 2), (2 C.
C. C. 309) 88
Gillespie v. Wright, (14 U. C.
R. 32) 99, 100
Gillis, R. v., (11 Cox 69) 215
Gillyard, R. v., (12 Q. B. 527)
487, 488
Gilmore, R. v., (7 C. C. C 219) 199
Giovanetti, R. v., (5 C. C. C.
157) 74, 447
Gird wood, R. v., (2 East. P. C.
1116) 88
Glamorganshire, R. v. JJ. of,
(5 T. R. 279) 516
Gloucester Board of Health t.
Chandler, (32 L. J. M. C. 66;
7 L. T. 722) 354
Golden, R. v., (10 C. C. C.
278) 212
Golding, R. v., (35 N. B. R.
385) 148
Goldsberry, Ex parte, (10 C. C.
C. 392) 476
Goldsberry, R. v., (11 C. C. C.
159) 481
Gompertz, R. v., (9 Q. B. 824) 68
Goodenough, R. v., (2 A. & E.
463) 516
Goodfellow, R. v., (10 C. C. C.
425) 70
Goodman, R. v., (2 O. R. 468) 472
Goodrich, R. v. (19 L. J. Q. B.
413) 147
Gordon, R. v., (16 O. R. 64) . . 75
Gordon v. Denison. (24 O. R.
576: 22 A. R. 315) . .90, 123, 190
Gorman, Ex parte, (4 C. C. C.
305) 309
Gosselin v. The King, (7 C. C.
C. 139 ; 33 S. C. R. 255) ... 544
Gottfriedson, R. v., (10 C. C.
C. 239) 232
Gonilliould, R. v., (7 C. C. C.
432) 436
Goulet, R. v., (12 C. C. C. 365)
260, 424, 498
Goulet, R. v., (20 C. C. C. 191) 195
c.c.p. — B4-
PAGE
Governor of HoUoway Prison,
R. v., (71 L. J. K. B. 935) . . 470
Gow, R. v., (11 C. C. C. 81) . 267
Grady, R. v., (7 C. & P. 650) . 208
Graf, R. v., (15 C. C. C. 193) . . 412
Graham, R. v., (1 C. C. C. 405) 349
Graham, R. v., (2 C. C. C. 388)
61, 173
Graham, R. v., (17 C. C. C.
264) 96
Graham v. McArthur (25 U. C.
R. 478) 95
Grant, R. v., (19 L. J. M. 0.
59) 490
Grant v. McFadden, (11 C. P.
122) 100
Grant v. Moser, (5 M. & G.
123) 54
Gratton, R. v., (17 C. C. C.
324) 269, 270
Gravelle, R. v., (10 O. R. 735) 279
Graves, R. v., (21 O. L. R.
330) 105
Graves, R. v., (No. 1), (16 C.
C. C. 150) 361, 483, 506
Graves, R. v., (No. 2), (16 C.
C. C. 318) 364
Gray, R. v., (5 C. C. C 24) . .
338, 339
Gray v. Commissioner of Cus-
toms, (48 J. P. 343) 120
Great Marlow, R. v., (2 East.
244) 85
Great West Laundry Co., R. v.,
(3 C. C. C. 514) 150
Green, Ex parte, (35 N. B. R.
137) 5
Green, R. v., (20 L. J. M. C.
168) 290
Green, R. v., (12 P. R. 373). .507
Green, R. v., (22 C. C. C. 155) 330
Greene & Gaynor, Ex parte (No.
1), (7 C. C. C. 375) 478
Greenough v. Eccles, (5 C. B.
N. S. 786) 546
Gregg, R. v., (13 D. L. R. 770) 340
Grey, Ex parte, (12 C. C. C.
481) 301
Grieves, Ex parte, (29 N. B. R.
543) 256
GrifBn v. Coleman, (4 H. & N.
256) 163
Griffiths, R. v., (16 Cox 46).. 198
Griffith V. Taylor, (2 C. P. D.
194) 98
Grimes v. Miller, (23 A. R.
764) 120
Grimmer, R. v., (25 N. B. R.
424) .- . 80
Grinder, R. v., (10 C. C. C.
333) 212, 546
Grindley, R. v., (1 Russ. on
Crimes 88) 45
Groulx, R. v., (Q. R. 18 K. B.
118; 15 C. C. C. 20) 41
XVIU
TABLE OF CASES.
PAGE
Grundy, Ex parte, (12 C. C. C.
65) 121, 155, 245
Guerin, Re, (16 Cox 596; 58
L. J. M. C. 42) ....86, 182,
196, 222, 251
Guertin, R. v., (15 C. C. C.
251) 122, 361
Gunn, R. v., (10 C. C. C. 148) 370
Haacke v. Adamson, (14 C. P.
201) 92. 100
Hadland, Re, (1 Dowl. & Dowl.
835) 194
Hadwen, R. v., [1902] 1 K. B.
882 541
Hain, R. v., (12 T. L. R. 323 > 82
Halifax Electric Tramway C5o.,
R. v., (1 C. C. C. 424).... 378
Hall, R. v., (12 C. C. C. 492) 233
Hall, R. v., (12 P. R. 142)..
262, 263
Hall V. Pittingell, (18 C. C. C.
196> 294
Hall V. Roohe. (8 T. R. 188) 162
Hallett V. Wilmot, (40 U. C.
R. 263) 95
Hamilton. R. v., (2 C. C. C.
390; 12 M. R. 354) 207
Hamilton, R. v., (3 C. C. C. 1) 236
Hamilton, R. v., (4 C. C. C.
251) 65
Hamilton v. Massie, (18 O. R.
585) 39. 163
Hamilton t. Walker, [18921 2
Q. B. 25 252. 253
Hamlink, R. v., (17 C. C. C.
162) 345
Hamlink, R. v.. (19 €. C. C.
493) 113
Hammond. R. v., (1 C. C. C.
373: 29 O. R. 211) ....50. 173
Hampshire, R. v. JJ. of, (33
L. J. Q. B. 176) 346
Hamren. R. v.. (7 C. C. C. 188) 376
Hancock v. Somes, (1 E. & E.
795) 297
Handcock v. Baker, (2 B. & P.
260) 165
Hanev v. Mead, Re. (34 C. L.
J. 330) 174
Hannay, R. v.. (11 C C. C. 23)
182. 222
Hanson, R. v., (4 B. & Aid.
521) 488
Hardy v. Ryle, (9 B. & C. 603) 97
Hai^reaves v. Diddams, (44 L.
J. M. C. 178) 83
Harkness. R. v.. (No. 1) (10
C C C 193) 61
Harley.' R." v..' (4 C. & P. 369) 59
Harmer. R. v., (2 Cox 487) . 221
Harper. Re. (23 O. R. 63) . . 474
Harper v. Carr, (7 T. R. 270) 153
Harran, R. v., (20 C. C C. 72)
83. 242
PAGE
Harris, Ex parte, (14 C. C. C.
109; 4 W. L. R. 530) 499
Harris, Re, Edwin G.. (26 N.
S. R. 508) 485
Harris, R. v., (1 Moody C. C.
33g ) 213
Harris, R. " v.', ' ( 13 "c." "c. C. 393 ) 276
Harris, R. v., (4 T. R. 205). 290
Harris, R. v.. (18 C. C. C. 392)
410, 415
Harrison, R. v., (15 O. L. R.
231) 521
Harrup v. Bayley, (6 E. & B.
218; 25 L. J. M. C. 107)
321, 322
Hart, R. v., (2 B. C. R. 264) . 80
Hart, R. v., (45 U. C. R. 1) . . 223
Hartlen, R. v., (2 C. C. C. 12) 43
Hartley, R. v., (31 L. J. M. C.
232) 96
Hartley, R. v., (20 O. R. 481)
271, 501
Harvey of Comb's Case, (10
Mod. 334) 233
Harwood v. Williamson, (14 C.
C. C. 76) 348
Hatch, R. v., (16 C. C. C. 196) 538
Hatch T. Taylor, (14 N. B. R.
39) . . . 98 99
Hatton's Case, (2 Salk. 477) .' 240
Haverstock, R. v., (5 C. C. C.
113) 4.38
Hawbolt, R. v.. (4 C. C C. 229) 344
Hawes, R. v., (6 C. C. C. 238) 404
Hawkins, Re, (3 P. R. 2.39) . . 459
Hayes, In re, (21 C. L. T. Occ.
N. 87) 485
Haylock v. Sparke, (22 L. J.
M. C. 67) 100
Haynes. R. v., (6 C. C. C. 357) 508
Hayward, R. v., (6 C. C. C. 399) 443
Hazelwood, R. v., (20 C. C. C.
488) 482
Hazen, R. v., (20 A. R. 633)
135. 153, 245, 261, 271
Heam, R. v., (1 C. & M. 109) 215
Hebert, Ex parte, (4 C. C. C.
153) 76, 251, 494
Hebert, Ex parte. (15 C. C. C.
165) 124, 368
Hebert v. Hebert, (16 C. C. C.
199) 298
Heckman, R. v., (5 C. C. C.
242) 474
Heflfeman, R. v., (13 O. R.616)
1.53. 252. 261
Heminp, R. v., (5 B. & Ad. 666) l02
Hendershott, R. v., (26 O. R.
678) 541
Henderson v. Preston, (21 Q.
B. D. .362) 313
Hendrie. R. v., (10 C. C. C. 298) 61
Hennesv v. Ossier, (8 TT. C. L.
.T. 299) 2Sn
Henry. R. v., (16 C. C. C. 73) 353
TABLE OF CASES.
XIX
Hereford, J J., R. v., (2 D. &
L. 500) 78
Hereford, R. v., (3 E. & B. 115) 173
Plerrell, R. v., (1 C. C. C. 510;
12 M. R. 198).. 81, 269, 431, 501
Herrell, R. v., (3 C. C C. 15;
12 M. R. 522) 493
Herrington, R. v., (12 W. R.
420) 297
Hereford, J J., R. v., (6 Q. B.
'j'53\ yg
Hertfordshire, jj., R. v. (4 B.
& Ad. 561) 341
Hespeler v. Shaw, (16 U. C. R.
104) 489
Heustis, R. v., (2 N. S. R. 101) 102
Hevves, R. v., (3 A. & E. 725) 109
Hicks, R. v., (20 C. C. C. 192) 447
Higgins, R. v., (10 C. C. C. 456) 50
Higgins, R. v., (8 Q. B. 150;
10 .Tur. 838) Ill
Higgins. R. v., 4 U. C. R. (O.
S.) 83 231
Higham, R. v., (7 B. & B. 557)
146, 509
Highmore, R. v., (2 Ld. Raym.
1220) 251
Hilchie, Ex parte, (11 C. C. C.
85) 200
HiU, Ex parte, (31 N. B. R.
84) 270, 494
Hill, Ex parte, (3 C. & P. 225) 473
Hindlev v. Haslam, (39 Q. B.
D. 81) 37
Histed, R. v., (19 Cox. 16).. 217
Hoare, R. v., (12 C. C. C. 1) . 363
Hodge, R. v., (2 C. C. C. 350) 61
Hodges, R. v., (8 C. & P. 195) 46
Hodgins, R. v., (12 O. R. 367) 76
Hodgson V. Little, (16 C. B. N.
S. 202) 357
Hoesson Rahim, Re, (19 C. C.
C. 394) 480
Hogan, Ex parte, (32 N. B. R.
247) 147
Hogarth, R. v., (24 O. R. 60) 409
Hoggard. R. v., (30 U. C. R.
152) 273, 489
Holden, R. v., (3 M. R. 579) 224
Holland, R. v., (4 C. C. C. 79) 4
Holland, R. v., (37 U. C. R.
214) 264, 494
HoUey, R. v., (4 C. C. C. 510)
120, 185, 195
Hollis, R. v., (2 Stark. 536) . 290
Holman, In re, (3 R. & G. N. S.
R. 375) SO
Holman & Rea, Re, (No. 2).
(21 C. C. C. 11) ...86, 113, 197
Holmes, R. v., (12 C. C. C. 235) 76
Holyoke, R. v., (21 C. C C.
422) 80, 151, 494. 498, 515
Honan, il. v., (20 C. C. C. 10)
391, 393
PAGE
Hong Lee. (10 W. L. R. 376;
15 C. C. C. 39) ...86, 224, 424
Hood, R. v., (1 M. C. C. 281) 157
Hoo Sans, R. v., (19 C C. C,
259) 220
Hoo Yoke, R. v., (10 C. C C.
211) 223
Hope V. Evered, (17 Q. B. D.
338) 123
Hope-Young, R, v., (10 C. C.
C. 466) 219
HofFe's Bail, Re, (22 C. C. C.
116) 228
Hopkins, Ex parte, (61 L. J.
Q. B. 240) 273
Hopkins v. Smith, (1 O. L. R.
659) 36
Hopwood, Ex parte, (15 Q. B.
121) 147, 257
Hornbrook. R. v., (38 N. B. R.
358; 4 B. L. R. 508) 255
Homer, R. v., (1 Leach C. C.
305) 467
Horning, R. v., (8 C. C. C. 268) 493
Horsman, Ex parte, (15 C. C.
C. 280) 366
Horton, R. v., (3 C. C. C. 84;
34 C. L. J. 42) 308, 473, 444
Hoskins, Re, (21 C. C. C. 435) 302
Hostetter v. Thomas, (5 C. C.
C. 10) 330
Hostyn, R. v., (9 C. C. C. 138)
502, 521
Hottentot Venus Case, (13 East
195) 462
Houghton, R. v., (1 El. & B.
501) 39
House, R. v., (2 M. R. 58) 224
Howard, Sa; parte, (25 N. B. R.
191) 291
Howard, Ex parte, (32 N. B. R.
237) 299
Howell, R. v., (16 C. C. C. 178 ;
19 M. R. 317) 410
Howes, R. v., (6 C. C. C. 238) 444
Hube. R. v., (5 T. R. 542) ... 488
Huber, R. v., (14 C. C. C. 447) 370
Hudgins, R. v., (12 C. C. C.
223) 123
Hudson, R. v., (Bell 263; 29
L. J. M. C. 145) 68
Huggins, R. v., [1895] 1 Q. B.
563 79
Hughes, R. v., (17 N. S. R. 194) 73
Hughes, R. v., (3 A. & E. 425) 108
Hughes, R. v., (4 Q. B. D. 614)
119, 120, 151, 159
Hughes, R. v., (2 C. C. C. 5) . 501
Hughes, R. v., (2 C. C. C.332) 131
Hughes, R. v., (1 Cox 176).. 221
Hughes V. Wavertree T^cal
Board. (10 T. L. R. 357; 58
J. P. 654) 353
Huguet, Ex parte, (29 L. T.
41) 470
XX
TABLE OF CASES.
PAGE
Hulcott, R. v., (6 T. R. 583) 289
Hung Gee, R. v., (21 C. C. C.
404) 391, 392
Hung Gee, R. v., (21 C. C. C.
411) 509
Hunt V. Shaver, (22 .\. R. 202) 105
Hunter v. Gilkison, (7 O. R.
735) 92, 473
Hurd, R. v., (21 C. C. C. 98> . 220
Hutchinson, R. v., (8 C. C. C.
486; 11 B. C. R. 24) . .69, 70, 546
Ikezoj'a v. Can. Pac. Ry. Co.,
(12 B. C. R. 454) 480
Iman Din, R. v., (18 C. C. C.
§2) 49 204 253
Ingham.' R." v.', * ( 17 ' Q. ' B.' 884)' 'OC
Ing Kon, R. v., (14 C. C. C.
197) 365
Ing Kon V. Archibald, (14 C.
C. C. 201) 365
Ireland v. Pitcher, (11 P. R.
403) 101
Irish, R. v., (14 C. C. C. 458)
51, 369
Irving, Ex parte, (35 N. B. R.
461) 485
Irwing, R. v., (14 C. C. C. 489)
257, 262
Isaac V. Impey, (10 B. & C.
442) 194
Jack. R. v., (No. 2), (5 C. C.
C. 304) 387, 398, 445
Jackson, R. v., (22 C. C. C. 215) 396
Jacobs, R. v., (4 Cox 54).... 215
James, R. v., (6 C. C. C. 159;
4 O. L. R. 537) 49
James, R. v., (19 C. C. C.391) 220
Janneau, R. v., (12 C. C. C.
360) 260
Jarrald, R. v., (32 L. J. M. C.
258) 129, 130
Jarvis, R. v., (2 M. & Rob 40) 63
Jeffreys, R. v., (22 L. T. 786) 260
Jeffries, R. v., (1 T. R. 241).. 251
Jenkins, R. v., (14 C. C. C.221) 419
Jennings, R. v., (3 Keb. 383) 239
Jeves, R. v., (3 A. & E. 416) . . 108
Jodrey, R. v., (9 C. C. C. 477) 209
John V. The Queen, (15 S. C
R. 385) 65, 66
John Cook, Ex parte, (3 C. C.
C. 72) 395, 413
John Doe, Re, (3 C. C. C. 370) 318
John's Case, (1 East. P. C 357) 543
John Smith, Ex parte, (2 D. &
R. 461) 286
Johnson, R. v., (2 B. C. R.
87) 193
Johnson, R. v., (2 C & K. 354) 207
Johnson, R. v., (1 Str. 261).. 142
Johnson; R. v., (8 C. C. C. 123)
51, 511
Johnson, R. v., (17 C. C. C.
172) 41, 115, 452
PAGE
Johnson, R, v., (17 C. C. C.
175) 34:;
Johnson, R. v., (19 C. G. C.
203; 20 C. C. C. 8)
259, 405, 472
John.son, R. v., (23 C. C. C.
136) 390
Johnson, Ex parte, (32 L. J.
M. C. 193) 241
Johnson v. Colam, (L. R. 10 Q.
B. 544: 44 L. J. M. C. 185;
32 L. T. 725) 152, 239
Johnston, R. v., (6 C. C. C.
232 ) 70
Johnston, R v., (No. 1), (li
€. C. C. 6) 304
Johnston, R. v., (No. 2), (11
C. C. C. 10) 325
Johnston, R. v., (13 C. C. C.
179) 326
Johnstone, R. v., (16 C. C. C.
379) 389
Johnston, R, v., (17 C. C. C.
369) 143
Johnston v. Meldon, (30 L. R.
Ir. 15) 82, 90
Johnston v. McDougall, (17 C.
C. C. 58, 398) ..17, 92, 175, 372
Johnston v. O'Reilly, (12 C C.
C. 219; 16 M. R. 405)
87, 129, 495, 498
Johnston v. Robertson, (13 C.
C. C. 452) 325, 483
Jones, R. v., (18 C. C. C. 414) 499
Jones, R. v., [1894] 2 Q. B.
382 485
Jones, R. v., (1 Den. 558) ... 88
Jones, R. v., 6 St. Tr., (N.S.)
811 56
Jones, Ex parte, (19 L. J. M.
C. 151 ; 1 L. M. & P. 357) . . 146
Jones V. Grace, (17 O. R. 681)
92, 95, 100, 168
Jones V. Ross, (3 U. C. R. 328) 161
Jones V. Williams, (36 L. T. N.
S. 559; 46 L. J. M. C. 270) 86
Jordan, R. v., (5 C. C. C. 438 »
331 332
Joseph, R. v., (4 C. C. C. 126)' 336
Jukes, R. v., (8 T. R. 536) . . .
134, 273, 488
Jung r^e, R. v., (22 C. C. C.
63) 391, 392, 393
Justice V. Gosling, (21 L. J. C.
P. 94) 40
Kalabeen, R. v., (1 B. C. R., pt.
1, 1) 212
Kalar v. Cornwall, (8 U. C. R.
168) 95
Kalke, Ex parte, (14 C. C. C.
22) 460
Karn, R. v., (5 C. C. C. 543) 50
Karn, R. v., (5 O. L. R. 704;
6 C. C. C. 479) ,.. 421
TABLE OF CASES.
XXI
PAGE
Kaulbach, R. v., (22 C. C. C.
219) 286
Kavanagh, R. v., (5 C. C. C.
507) 471
Kay, R. v., (9 C. C. C. 406; 11
B. C. R. 157) 217
Kaye, Re, (1 D. & R. 436) ... 515
Keeler, R. v., (7 P. R. 117)..
231, 232
Keenahan v. Egleson, (22 U.
C. R. 626) 105
Keenan, R. v., (21 C. C. C.
467) 494
Keeping, R. v., (34 N. S. R.
442 282, .396, 474
Keeping, R. v., (4 C. C. C. 494) 282
Kehr, R. v., (11 C. C. C. 52) .
121, 429, 483, 498
Kelly, R. v., (6 C. P. 372) ... 57
Kelly, In re, (27 N. B. R. 553) 498
Kelly, Re, (5 C. C. C. 541) ;. . 50
Kelly, q.i. v.. Cowan. (18 U. C.
R. 104) 105
Kemble v. McGarry, (6 O. S.
570) 99
Kennedy, Re, (17 C. C. C.342)
148, 489
Kennedy v. Kokoliades, (17 C.
a C. 4) 379
Kennedy, R. v.. (86 L. T. 753) 141
Kennedy, R. v., (17 O. R. 159) 255
Kennett, R. v., (5 C. & P. 282)
56, 58
Kenrick, R. v., (5 Q. B. 49 ; 12
L. J. M. C. 135) 68
Kent. R. v., (2 Ld. Raym.
1546) 322
Kent, Ex parte, (7 C. C. C.447) 307
Kent, J.T., R. v., (40 L. J. M.
C. 76) 517
Kent V. Olds, (7 U. C. L. J. 21) 3.35
Keohan v. Cook, (1 N. W. T.
Rep. 125) 330
Kerr, R. v., (26 C. P. 214) ... 123
Keddy, R. v., (4 D. & R. 734) 251
Kimbalton, Ex parte, (25 J. P.
759; 5 L. T. 347) 186
King, R. v.. [1897] 1 Q. B.
214; 66 L. J. Q. B. 87 ... 39
King. R. v., (37 C. L. J. 317) 224
King, R. v., (4 C. C. C. 128) . 335
King, (J. W.) R. v., (4 C. C.
C. 426) 300, 427
King V. Osmer, (5 East. 308) . 169
Kingston, R. v.. (8 East. 41) . 290
Kiugstone v. Wallace, (25 N. B.
R. 573) 159
Kinnis v. Graves, (19 Cox 42) 86
Kinnis v. Groves, (67 L. J. Q.
B. 584) 184
Kirwin, R. v., (20 C. C. C. 181)
269, 270
Kite and Lane's Case, (1 B. &
C. 101) 122
PAGE
Klein, R. v., (11 W. L. R. 249 ;
16 C. C. C. 503) 414, 453
Klemp, R. v., (10 O. R. 143) 80
Kneeland, R. v., (Q. R. 11 K.
B. 85; 6 C. C. C. 81) 56
Knight V. Halliwell, (L. R. 9
Q. B. 412) 352
Knowles, R. v., (21 C. C. C.
321) 394
Kokoliades v. Kennedy, (17 C.
C. C. 4 ; 18 C. C. C. 495) . .
375 379
Kolotyla, R. v. (21 M. R. 197 ;'
19 C. C. C. 25) 276
Koogo, R. v., (19 C. C. C. 56)
324, 336, 365
Koolberger, R. v., (16 C. C. C.
228) 387
Krans, Ex parte, (1 B. & C.
258) 467
Kroesing, R. v., (10 W, L. R.
649; 16 C. C. C. 312) .... 51
Labbe, R. v., (17 C. C. C.417) 51
Labelle v. McMillan, (34 N. B.
R. 488) 101
Ivaconrsiere, R. v., (8 M. R.
302) 83
LaCroix, Re, (12 C. C. C. 297)
259, 521
Lafleur v. Vallee, (19 C. C. C.
362) 224, 311
Lai Ping, R. v., (8 C. C. C. 467 ;
11 B. C. R. 102) 202. 419
Laird, R. v., (1 Terr. L. R.179) 301
Laity, R. v., (21 C. C. C. 417)
38 379
Lake v. Butler, (24 L. J. Q. b!
273) 167
Laliberte & Fortin, (Q. R. 2 Q.
B. 5731 Ill
Lalonde, R. v., (9 C. C. C.501) 477
Lambert, Re, (4 C. C. C. 533) 374
Lambe's Case, (2 Iveach C. C.
625) 211, 216
Lamonthe, R. v., (15 C. C. C.
62) 394, 447
Lancashire, J J., R. v., (4 B. &
Aid. 289) 517
Langford, R. v., (15 O. R. 52)
80. 148
Langlois, R. v., (20 C. C. C.
183) 119,238,252, 273
Langwitli v. Dawson, (30 C. P.
375) 74
Lantz, R. v.. (15 D. L. R. 651;
22 C. C. C. 212) 211
Lapiere, R. v., (1 C. C. C. 413) 65
Lapointe, R. v., (20 C. C. C.
98) 252
T^rin V. Boyd, (11 C. C. C. 74) 297
Laughley, Ex parte, (28 N. B.
R. 656) 80
Laughton. R. v., (20 C. C. C.
30 ; 22 M. R. 520) 76
zxu
TABLE OF CASES.
PAGE
Launock v. Brown, (2 B. &Ald.
592) 164
Laurin. R. v., (No. 3), (5 C. C.
C. 548) 173
Laurin, R. v., (6 C. C. C. 135) 547
Law, R. v., (15 C. C. C. 382 > . 541
Law, R. v., (27 U. C. R. 260) 288
I^w Bow, R. v., (7 C. C. C.
468) 300, 501
Lawrence, R. v., (1 C. C. C.
295) 229
Lawrenson v. Hill, (10 Ir. C.
L. R. 177) 120, 137, 159
Layton, R. v., (4 Cox. 149) . . 46
T^zier, In re, (29 S. C. R. 630) 459
Lea V. Charrington, (23 Q. B.
D. 45) 123
Leach, R. v.. (14 C. C. C. 375) 365
Leach and Fogarty, Re, (18 C.
C. C. 487) 371
Leary, R. v., (8 C. C. C. 141) . . 274
Tveary v. Patrick, (15 Q. B. 266;
19 L. J. M. C. 211) 94
I^Bel, Ex parte, (16 C. C. C.
363) 263
Leblanc, R. v.. (21 C. C. C.221)
119, 142, 365
Leblanc, Re, (22 C. C. C. 208)
303, 311, 46.S
Iveceistershire, J J., R. v., (15
Q. B. 88) §B4
Leconte, R. v., (11 C. C. C. 41) 84
Lecours v. Hurtubise, (2 C. C.
C. 521) 322
Ivee, R. v., (15 O. R. 353) ... 73
Lee, R. v., (17 C. C. C 190) . . 375
I^e Chu, R. v., (14 C. C. C.
322) 160, 483
Lee Guey, R. v., (13 C. C. C.
80; 15 O. L. R. 235)
118, 394, 395, 447
Lee How, R. v., (4 C. C. C.
551) 124. 243
Lee Tuck, R. v., (19 C. C. C.
471) 202
Leeson, R. v., (5 C. C. C. 184) 79
Leeson v. General Council, (43
Ch. D. 366) 81
Leet, R. v., (20 C. L. T. Occ.
N. 46) 224
Lefroy, R. v., L. R. (8 Q. B. .
134) 250
Legg V. Pardee, (9 C. B. N. S.
289; 30 L. J. M. C. 108) .. 83
Legros, R. v., (14 C. C. C. 162) 405
Leitz, Ex parte, (No. 1), (3 C.
C. C. 54) 468
Lennox, R. v., (34 U. C. R. 28) 123
Leonard v. Pelletier, (9 C. C.
C. 19) 285, 496
Leonard Watson's Case, (9 A.
& E. 731) 466
Lepez, R. v., (Dears. & B. 525) 53
Lepine, R. v., (4 C. C. C. 145)
154, 177
PAGE
Leschinski, R. v., (17 C. C. C.
199) 472
Levesque, R. v., (8 C. C. C.505)
253 254
Levi. Re, (1 C. C. C. 74) . . .' 478
Levitt, R. v., (Cro. Car. 538) . 53
Lewis, Re, (9 C. C. C. 233) . . . 471
Lewis, R. v., (6 C. C. C. 499) . 507
Lewis, R. v., (7 C. C. C. 261;
6 O. L. R. 132) 50
I^wis, R. v., (10 C. C. C. 184)
372, 373
Lewis, Ex parte, (16 Cox. C. C.
449) 96
Lewis, Ex parte, (21 Q. B. D.
191) 110, 144
L'Heureux, R. v., (14 C. C. C.
100) ..259, 280
Lindsay, Ex parte, (15 C. C. C.
252) 366
LittlechUd, R. v., (L. R. 6 Q.
B. 293) 245
Liverpool, R. v., (15 Q. B.
1070) 334
Livingstone v. Massey, (23 TJ.
C. R. 156) 37
Lizotte, R. v., (10 C. C. C. 316)
121, 160
Llanfaethly, R. v., (2 E. & B.
940) 348
Lloyd, R. v., (19 O. R. 352) . . 59
Lockhart v. St. Albans, (21 Q.
B. D. 188) 351, 352
London, R. v. City of, (E. B.
& E. 509; 27 L. J. M. C.
231) 441
London, R. v. Lord Mayor of,
(16 Cox 81) : 223
rx)ng, R. v., (1 M. & R. 139) . . 489
Long, R. v., (6 C. & P. 179) . . 541
Longeway v. Avison, (8 O. R.
357) 105
Lon Kai Long, Ex parte, (1 C.
C. C. 120) 299
Lord, R. v., (16 L. J. M. C.15) 233
Lord's Day Act, Re, (16 C. C.
C. 459) 379
rx)renzo, R. v.. (14 O. W. R.
1038 : 16 C. C. C. 19) . . .262, 263
Lorrimer, R. v., (14 C. C. C.
430) 81. 122
Lowrey, R. v., (13 C C. C. 105)
429, 482. 483
Luigi, R. v., (14 O. W. R. 1041 ;
16 C. C. C. 25) 263
Lushington, R. v., [1894] 1 Q.
B. 420 224
Luttrel, R. v., (18 C. C. C. 295) 389
Lynch, Re, (12 C. C. C. 343) . 286
Lvnch, R. v., (12 C. C C. 142) 74
Lvnch, R. v., (12 O. R. 378) 337
Lvnch, R. v., (19 O. R. 664) . 75
Lyon, R. v., (2 C. C. C. 242) . .50
Lvon, R. v., (3 Burr. 1461) . . 236
TABI<E OF CASES.
XXUl
Lyons, R. v.,
Lyons, R. v.,
PAGE
(2 C. C. C. 218) .
85, 86
(10 C. C. C. 130) 255
Lyons, R. v., (16 C. C. C. 152) 65
Mabee, R. v., (17 O. R. 194) . . 254
Mabey, R. v., (37 U. C. R. 248) 303
Macclesfield, JJ., R. v., (2 L. T.
352; 13 Q. B. 881) 356
Afacklin, R. v., (5 Cox 216) . . 441
Madan v. Catarrach, (7 H. &
N. 360) 205
Madden, Ex parte, (13 C. C. C.
273) 121, 143, 160
Madden, R. v., (10 L. C. Jurist,
344) 53
Madden, R. v., (31 U. C. R.
333) 345
Madden v. Shewer, (2 U. C. R.
115) 99
Magistrates of Ballycastle, R. v.,
(9 L. T. R. 88) 83
Maguire, Ex parte, (7 L. C. R.
57) 231
Mah Sam, -R. v., (19 C. C. C.
1) 134, 246, 413
Mahon, R. v., (4 A. & E. 575) 36
Mailloux, R. v., (3 Pug. N. B.
R. 493) 49, 53, 56
Mainville, Ex parte Eliza, (1 C.
C. C 528) 9
Mainwaring, R. v., (27 L. J. M.
C. 278) 124
Major, R. v., (14 O. W. R.
1111) 263
Major, R. v., (29 N. S. R. 373) 81
Malcolm, R. v., (2 O. R. 511) . 83
Male & Cooper, R. v., (17 Cox
689) 218
Mali, R. v., (19 C. C. C. 184) 410
Mallinson, R. v., (2 Burr. 681) 142
Mallory, R. v., (13 Q. B. D. 33) 542
Malloy, R. v., (4 C. C. C. 116) 340
Manchester Ry. Co., R. v., (8
'A. & E. 413) 517
Manning, R. v., (2 C. & K.
887) 52, 63
Mareinko, R. v., (19 C. C. C.
388) 396, 506
Marcott, R. v., (4 C. C. C. 437) 50
Margate Pier Co. v. Hannam,
(3 B. & Aid. 266) 75
Markham, Ex parte, (21 L. T.
748) 356
Marks, R. v., (3 East 157; 2
Hale 129) 233. 467
Marquis of Stafford, R. v., (3
T. R. 646) 108
Marquis, R. v., (8 C. C. C. 346)
496, 499
Marsh, R. v., (21 C. C. C. 413)'
38 379
Marshall. R. v., (2 Keb. 594)' 278
Martin, R. v., (9 C. C. C. 371) .540
Martin. R. v., (18C. C. C. 107) 108
PAGE
Martin v. Pridgeon, (28 L. J.
M. €. 179) 135, 265
Martin & Garlow, Re, (15 C. C.
C. 446) oil
Martinuik, R. v., (22 C. C. C.
275) :{S3
Mason, R. v., (5 P. R. 125) . . 233
Mason v. Bibby, (33 L. J. M.
C. 105) 146, 147
Massey v, Johnson, (12 East
67) 97
Massey v. Morris, [1894], 2 Q.
B. 412 48
Matheson, R. v., (20 C. C. C.
153, 496) 157, 365
Matheson, R. v., (21 C. C. C.
312) 372, 445
Matthews v. Carpenter, (16 L.
R. Ir. 420) 241
Maxwell v. Clark, (10 M. R.
406) 112
May, R. v., (9 C. C. C 529) . . 236
May V. Reid. (16 A. R. 150). 223
Mayor v. Harding, (L. R, 2
Q. B. 410 ; 16 L. T. 429) . . 354
Meakin, R. v., (7 C. & P. 897) ' 45
Meceklette, R. v., (15 C. C. C.
17) 424, 545
Meehan, R. v., (No. 1), (5 C.
C. C. 307) 109
Meehan, R. v., (No. 2), (5 C.
C. C. 312)
107. 109, 177, 182, 359, 435
Meikleham, R. v., (10 C. C. C.
382) 360, 370, 505
Melanson, Ex parte, (13 C. C.
C. 251) 155, 275
Meloche v. Deguire, (8 C. C. C.
89) 36
Menary, R. v., (18 C.C. C. 237) 65
Menary, R. v., (19 O. R. 691)
343, rci
Mennel, R. v., (1 Terr. L. R.
487) 51
Mercier, R. v., (6 C. C. C. 44) 496
Mercier, R. v., (18 C. C. C. 363) 143
Metcalfe v. Reeve, (9 U. C. R.
263) 105
Meyer, R. v., (1 Q. B. D. 173) 77
Meyer, R. v., (11 P. R. 477) . .
221, 264
Michaud, R. v., (17 C. C. C. 86)
245 279
Mitchell V. Brown, (1 E. & E.'
267; 28 L. J. M. C. 53) ..
286, 406
Middlehurst, R. v., (1 Burr.
399) 273
Middlesex, J J., o'f, R. v., (5 A.
& E. 626) 515
Middlesex, J J. of, R. v., (9 A.
& E. 540) 108, 177
Middlesex, JJ. of, R. v., (3 B.
& A. 938) 321
Middlesex, J J. of, R. v., (2
Dowl. & Dowl. 719) 341
XXIV
TABLE OF CASES.
PAGE
Middlesex, J.T. of, R. v., (9
Dowl. P. C. 163) 340
Middlesex. JJ. of, R. v., (8 D.
& R. 117) 488
Middlesex, JJ. of, R. v., (46 L.
J. M. C. 225 ; 2 Q. B. D. 516)
324, 505
Midland Ry. Co. v. Edmonton,
(17 Cox 731) 346
Miles, R. v., (24 Q. B. D. 423) 39
Millard, R. v., (22 L. J. M. C.
108) 245
Miller, R. v., (15 C. C. C. 87) .
153, 261
Miller, R. v., (No. 2), (15 C.
C. C. 156) 480
Miller v. I^a, (25 A. R. 428)
242 207
Milloy, R. v., (4 C. C. C. 116) ..322
Mills V. Collett, (6 Bing. 85). 208
Milne, R. v., (25 C. P. 94) . . 86
Mines, R. v., (1 C. C. C. 217;
25 O. R. 577) 180, 198, 288
Minshull, R. v., (1 N. & M. 277) 268
Mischowsky, R. v., (15 C. C. C.
.364) 327
Mitchell, R. v., (13 C. C. C.
344) 319
Mitchell, R. v., (19 C. C. C. 113)
41, 143, 301. 469
Mitchell, Ex parte, (16 C. C. C.
205) 284, 368, 370
Mitchell V. Brown, (1 E. & E.
267; 28 L. J. M, C. 53) ..
286, 406
Mitchell V. Foster, (12 A. & E.
472) 147
Moberlev v. Collingwood, (25 O.
R. 625) 83
Moflfatt T. Barnard, (24 U. C.
R. 498) 95, 306
Mole. R. v., 3 St. Tr. (N.S.)
1.312 56
Monaghan, R. v., (2 C. C. C.
488) 348. 497
Monahan, Ex parte, (17 C. C
C. 53) 18, 252, 2.53, 262
Money v. Leaoh. (1 Wm. Bl.
,555; 19 Howell's St. Trials
1002) 158
Monmouth.shire, J J., R. v., (1
B. & Ad. 895 334
Monmouthshire, J J., R. v., (26
L. J. M. C. 183) 244
Montgomery, R. v., (19 C. C. C.
233) 65
Monroe v. Twisleton, (Peake
■Add. Ca. 219) 542
Montreal (Citv of) v. Fortier,
6 C. C. C. 340) 375
Moodie, R. v., (20 U. C. R. 399) 53
Mooney, R. v., (11 C. C. C.
333) 179
Moore, R. v., (2 C. C. C. 57) 274
Moore v. Sharkey, (26 N. B. R.
7) 153
PAOE
Moran v. Palmer, (13 C. P.
528) 100
Morgan, R. v., (1 B. C. R., pt.
1, 245) 281
Morgan, R. v., (5 C. C. C. 63)
384, 386, 402, 466, 469
Morgan, R. v., (No. 2), (5 C.
C. C. 272) ....6.5, 403, 466, 469
Morgan, R. v., (5 M. R. 63) . . 284
Morgan v. Brown, (4 A. & E.
515) 291
Morgan v. Hughes, (2 T. R.
225) 92
Morison, Ex parte, (16 C. C. C.
28; 39 N. B. R. 298) . . .368, 498
Morley, R. v.. (2 Burr. 1042) 491
Morningstar, R. v., (11 C. C.
C. 15 ; 11 O. L. R. 318) . .429, .483
Morris, R. v., (L. R. 1 C. C.
R. 90; 36 L. J. M. C. 84).. 39
Morris, R. v., (16 C. C. C. 1)
301, 302, 484
Morrison, R. v., (15 C. C. C.
215) 367
Morrison v. Tjennard, (3 C. &
P. 127) 205
Morse, R. v., (22 N. S. R. 298) 262
Morton, R. v., (19 C. P. 9) .. 184
Morton, R. v., (19 C. P. 26) . 222
Morton, R. v., (23 C. C. C.172) 383
Mosier. R. v., (4 P. R. 64) .471, 482
Mott V. Milne, (31 N. S. R.
372) 98
Muleahy v. The Queen, (L. R.
3 H. L. 317) 69
Mullady, R. v., (4 P. R. 314) . 231
Munroe, R. v., (19 C. C. C 86) 276
Murdock, R. v., (4 C. C. C. 82)
300, 504
Murdock, R. v., (21 L. J. M.
C. 22) 131
Murfina v. Sauve, (6 C. C. C.
275) 160. 246
Murphy, In re, (28 N. S. R.
196) 473, 485
Murphy, Re, (2 C. C. C. 562)
468, 473
Murphy, R. v., (2 N. S. R. 1.58) 231
Murphy, R. v., (8 C. & P. 297)
206. 20.-.
Murphy, q.t. v. Harvey, (9 C.
P. 528) 105
Murray, R. v., (ICC. C. 4.52)
167, 472
Mu.ssett, R. v., (26 L. T. 429) 242
Myers & Wonnacot, Re, (23 I'.
C. R. 611) .33.1
MacDonald, Ex parte, (3 C. C.
C. 10; 27 S. C. R. 683) ...
281, 459
MacDonald, R. v., (2 C. C. C.
221) 216
MacDonald, R. v., (No. 2), (5
C. C. C. 279) 349, 468, 497
TABLE OF CASES.
XXV
PAGE
MacDonald, R. v., (16 C. C. C.
121) 484
Maeleod v. New South Wales,
[1894] A. C. 455 86
McAllan, R. v., (45 U. C. R.
402) 515
McAllister, R. v., (14 D. L. R.
430; 22 C. C. C. 166) ....
51, 369, 371
McAnn, R. v., (3 C. C. C. 110;
4 B. C. R. 587) ..271, 501, 508
McArthur, R. v., (14 C. C. C.
343) 507
MeArthur's Bail, Re, (3 C. C.
C. 195) 236
McAuley, R. v., (14 O. R. 643)
145. 147
McRerny, R. v., (29 N. S. R.
327; 3 C. C. C. 339) .49, 252, 253
^IcCabe, R. v., (18 C. C. C.
217) 321
McCarthy, R. v.. (11 O. R.
687) 291
McCatherin v. Jamers, (21 C. C.
C. 116) 119
McCleave, Ex parte, (14 C. C.
C. 18) 81
MoCormaek, R. v., (7 C. C. C.
135; 9 B. C. R. 497) 275
MeCorquindale. Ex parte, (15
C. C. C. 187) 269, 326, 498
McCoy, Ex parte, (1 C. C. C.
410) 80
McCram v. Foley, (6 P. R.
164) 100
MeCraw v. The King, (13 C. C.
C. 337) 234
MoCready, R. v., (14 C. C. C.
482) 62
McDonald, Ex parte, (9 C. C.
€. 368) 443
McDonald Bros. In re, (34 C.
L. J. 475) 280
McDonald, R. v., (2 C. C. C.
64) 317
McDonald, R. v., (2 C. C. C.
504) 299
McDonald, R. v., (3 C. C. C.
287) 115, 149, 159, 245
McDonald, R. v., (6 C. C. C. 1)
267. 313
McDonald, R. v., (12 0. R. 381)
83, 242
McDonald, R. v., (16 C. C. C.
121) 302
McDonald, R. v., (21 C. C. C.
229) 152, 257
^fcDonald. R. v., (24 N. S. R.
44) 144
McDonald, R. v., (26 N. S. R.
94) 271
McDonald v. Bulwer, (11 L. T.
27) 1.37
McDonald v. Stuckey, (31 U. C.
R. 577) 92, 100
c.c.p. — Ba
McEachern, R. v. (13 N. S. R.
321) 153
McElroy, R. v., (22 C, C. C.
123) 366, 507
McEwen, Ex parte, (12 C. C. C.
97) 79
McEwen, R. v., (17 M. R. 470;
7 W. L. R. 365; 13 C. C. C.
346) 404, 406, 422, 424, 472
McFarlane, R. v., (17 C. L. T.
Occ. N. 29) 284
McGOlivray, Re, (13 C. C. C.
113) 145, 167
McGillivray v. Muir, (7 C. C.
C. 360) 106, 435
McGilvery v. Gault, (17 N. R.
R. 641) 99, 100
McGDvery v. Gault, (19 N. B.
R. 217 101
McGivney, R. v., (22 C C. C.
222) 204
McGregor, R. v., (2 C. C. C.
410) 87. 115, 246, 448
McGregor, R. v., (10 C. C. C.
313) 259, 521
McGregor, R. v., (26 O. R. 115) 281
McGregor v. Scarlett, (7 P. R.
20) 159
McGuiness v. Dafoe, (3 C. C.
C. 139; 23 A. R. 704; 27 O.
R. 117) 98. 99, 119, 159
McGuire, R. v., (4 C. C. C. 12)
42, 174
Mcintosh, R. v., (5 C. C. C.
2.54; 23 S. C. R. 180) 61
Mcintosh, R. v., (28 O. R.
603) 345, 350
Mcintosh V. Vansteenbui-y, (8
U. C. R. 248) 98
Mclntyre, Ex parte, (16 C. C.
C. 38) 284, 370
Mclntyre, R. v., (21 C. C. C.
216) 41
Mclntyre, R. v., (14 C. C. C.
43) 361
Mclnulty, R. v., (22 C. C. C.
347) 204
Mclsaac v. McNeil, (28 N. S.
R. 424) 510, 534
Mclver v. McGillivray, (24 C.
L. T. Occ. N. 142. 237) ... 95
Mclvor R. v., (7 C. C. C. 183)
308, 460
McKay, R. v.. (17 C. C. C. 1) 495
McKeen v. Colpitts, (15 C. C.
C. 488) 372
McKenzie, Re, (2 R. & G. N.
S. R. 481) 480
McKenzie, R. v., (12 C. C. C.
4.35) 308. 502, 505, 506
McKenzie, R. v., (17 C. C. C.
.372) 263
McKenzie, R. v., (23 N. S. R.
6) 85, 1.50
McKenzie, R. v., (6 O. R. 165) 284
XXVI
TABLE OF CASES.
PAGE
McKenzie v. Mewbum, (6 O. S.
486) 100
McKinley v. Munsie, (15 C. P.
230) 95
McKinnon, R, v., (5 C. C. C.
301) 124, 243
McKinnon, R. v., (12 C. C. C.
414) 311, 367
McLaughlin v. Recorder's Court
of Montreal. (4 Q. P. R. 304) 5
McLean, The Queen v., (3 C.
C C. 323) 11
McLean, R. v.,' (5 C. C. C. 67)
118, 159
McLellan, R. v., (No. 1), (10
C. C. C. 1) 430
MoLellan, q.t. v. Brown, (12 C
P. 542) 105
McLellan, q.t. v. Mclntyre, (12
C. P. 546) 105
MoLellan v. McKinnon, (1 O.
R. 219) 92, 306, 343
McLeod, R. v., (1 C. C. C. 10) 509
McLeod, R. v., (6 C. C. C. 23) 344
McLeod, R. v., (12 C. C. C. 73)
400, 411, 447
McMahon, Ex parte, (48 J. P.
70) 177
McMichael, Ex parte, (7 C. C.
C. 549) 438
McMicken, Re, (20 C. C. C.
334) 90. 103, 199
McMullen, R. v., (9 C. C. C.
532 ) 362
McMurre'r.' Re', '(No.' 1), (18 C.
C. C. 41) 465
McMurrer, Re, (No. 2), (18 C.
C. C. 49) 163
McNaghten's Case, (10 CI. &
F. 200) 46
McNeills V. Gartshore, (2 C. P.
464) 120
McNutt, R. v., (3 C. C. C. 184)
115, 266
McNutt, R. v., (4 C. C. C.
392) 323, 326
McNutt, R. v., (11 C. C. C.
26) 367
McNutt, R. v., (20 C. C. C.
174) 365. 502
McNutt, Re, (21 C. C. C. 157) 38
McRae, R. v., (2 C C. C. 49)
85, 184
MoRae, R. v., (28 O. R. 569) . 197
McShadden v. Lachance, (5 C.
O. C. 43) 338, 345
McTier, Re, (17 C. C. C. 80) . . 470
Napper, R. v., (1 Mood. 44).. 130
Nar Singh, R. v., (10 W. L. R.
523, 14 C. C. C. 454, 45 C. L.
J. 296) 73, 401, 447
Nash's Case, (4 B. & Aid. 295) 465
Neal V. Devenish, [1894], 1 Q.
B. 544 152
PAGE
Neiderstadt, R. v., (10 C. C. C.
292) 361
Neill V. McMillan, (25 U. C. R.
485) 100
Nelson, R. v.. (4 C. C. C. 461) 387
Nelson, R. v., (15 C. C. C. 10)
311, 484, 492
Nelson, R. v., (22 C. C. C. 301) 444
Nero, R. v., (23 C. C. C. 167) 367
Neuberger, R. v., (6 C. C. C.
142) 339
NeviUe v. Ross, (22 C. P. 487) 99
Nevills V. Ballard, (1 C. C. C.
434) 297
Newman v. Bendyshe, (10 A. &
E. 11) 134
Newton, R. v., (1 F. & F. 641) 207
Newton, R. v., (11 P. R. 98). 285
Nichol, R. v., (40 U. C. R. 76)
332 333
Nichols, R. v., (5 T, R. 281n) .' 517
Nicholson v. Booth, (57 L. J.
M. C. 43; 58 L. T. 187) ... 243
Nicol, R. v., (5 C. C. C. 31) . . 193
Northumberland, JJ., R. v., (71
J. P. 331) 516
Nottingham, R. v., (6 A, & E.
355) 108
Nugent, Ex parte, (1 C. C. C.
126) 501
Nugent, R. v., (9 C. C C. 1) . . 352
Noigent, R. v., (15 C. C. C.
277) 369
Nunn, R. v.. (15 M. R. 288. 2
C. C. C. 429) 86, 113, 196
Nunn, R. v., (10 P. R. 395)
264, 284
Nunneley, R. v., (E. B. & E.
852) 83, 490
Nurse, R. v., (8 C. C. C. 173) 364
Oberland. R. v., (16 C. C. C.
244) 281
O'Brien," R.' V.," "(10 " 'c. C. C.
142) 154, 254
O'Brien, R. v., (5 Q. L. R.
161) 83
O'Brien v. Brabner, (78 L. T.
409) 144
O'Connor, R. v., (20 C. C. C
75) 122, 368, 507
O'Connor v. Marjoribanks, (4 M.
& G. 435) 542
Odell. R. v., (22 C. C. C. 39) 183
Offord, R. v., (5 C. & P. 168) . . 46
O'Gorman, R. v., (15 C. C. C.
173, 18 O. L. R. 427. 13 O.
W. R. 1189) 71, 88, 129
O'Hearon, R. v., (5 C. C. C.
187) 251
O'Hearon. R. v., (No. 2), (5
C. C. C. 531) 162, 477
O'Kelly V. Harvey, (15 Cox
435) 56
Oliphant v. Leslie, (24 U. C. R.
398) 99
TABLE OF CASES.
XXVll
PAGE
Oliver, R. v., (30 L. J. M. C.
12) 422
OUard v. Owens, (29 U. C. R.
515) 105
Olsen V. Cameron, (12 C. C. C.
193) 333
Omichund v. Barker, (Willes'
Rep. 549) 205
O'Neill, Ex parte, (9 C. C. C,
141) 363
O'Neill, Re, (19 C. C. C. 410) 470
O'Neil V. Attorney-General, (1
C. C. C. 303, 26 S. C. R. 122)
10, 390
Onley v. Gee, (30 L. J. M. C.
222) 135, 245
Ontario Public Health Act, Re,
(37 U. C. R. 214) 494
O'Regan, Ex parte, (16 C. C.
C. 110) 145
O'Regan, Ex parte, (17 C. C.
C. 160) 490
O'Reilly, q.t. v. Allan, (11 U. C.
R. 411) 105
Orr V, Spooner, (19 U. C. R.
601) 93
Orton, R. v., (14 Cox 226) 56
Osborn v. Gough, (3 B. & P.
551) 100
O'Shaughnessy, Ex parte, (8C.
C. C. 136) 423
O'Shaughnessy v. Montreal, (9
C. C. C. 44) 496
Osier, R. v., (32 U. C. R. 324) 288
Osmer. R. v., (5 East 308) .. . 169
O'Sullivan v. Michus, (23 C. C.
C. 169) 370
Ouimet, R. v., (14 C. C. C
136) 327, 377
Ouimet v., Bazin. (20 C. C. C.
458) 379
Owen, R. v., (4 C. & P. 236) . 43
Owen, R. v., (1 Moody C. C.
96) ■ 59
Owen V. Moberley, (64 J. P.
88) 205
Oxford V. Sankey, (54 J. P.
564) 185
Oxfordshire. J J., R, v., (18 L.
J. M. C. 222) 96
Oxfordshire, JJ., R. v., (4 Q. B.
177) 332
Pah-Oah-Pah-Ne-Capi. R. v., (4
C. C. C. 93) 216
Pahkala v. Hannuksala, (20 C.
C. C. 247) 330, 34.-.
Pain, Ex parte, (5 B. & C. 251) 134
Paine, R. v., (5 Mod. 163) 177, 188
Palmer v. Forsyth, (4 B. & C.
401) 520
Pamenter, R, v.. (12 Cox 177) 542
Panos. R. v., (No. 1), (14 C.
C. C. 291) 5, 377, 379
Panos, R. v., (No. 2), (14 C.
C. C. 408) 377, 379
PAGE
Papillo V. R., (20 C. C. C. 329)
119 238
Paquet v. Lavoie, (6 C. C. c'
314) 37
Paquin, R. v., (2 C. C. C. 134) 239
Pare v. Recorder of Montreal,
(10 C. C. C. 295) 264
Parke, Re, E. J., (3 C. C. C.
122) no
Parker, R. v., (L. R. 1 C. C. R.
225) 207
Parker, In, re, (19 O. R. 612) . . 470
Parker v. Etter, (33 N. S. R.
52) 93
Parker v. Parker, (32 C. P.
113) 204
Parkes v. Baker, (17 P. R.
345) 102
Parkyn v. Staples, (19 C. P.
240) 99
Parlby, R. v., (6 T. L. R. 37) 508
Patterson, R. v., (2 C. C. C.
339) fiQ
Paul, R." v.," '('e C. ' & P. 323 j ' • • 320
Paul, R. v., (19 C. C. C. 339) 49
Paul, R. v., Baptiste, (No. 2),
(20 C. C. C. 161) 119, . .238, 252
Paul, R. v., Baptiste, (No. 1),
20 C. C. C. 160) 238
Paynter. R. v., (26 L. J. M. C.
102; 7 E. & B. 328) ...96, 110
Pease v. Chaytor, (3 B. & S.
620) 37
Pearson, R. v., (L, R. 5 Q. B.
237, 22 L. T. 126) 241
Pedgrift v. Chevalier, (8 C. B.
N. S. 246) 357
Peerless, R. v., (1 Q. B. 143,
153) 74, 240
Pepper, R. v., (15 C. C. C. 314)
276, 405
Perhan, Ex parte, (5 H. & N.
30) 245
Perley, R. v., (25 N. B. R. 43) 270
Perrin v. Joyce, (6 U. C. O. S.
300) 163
Perry, R. v., (35 C. L. J. 174) 444
Perry v. Gibson, (1 A. & E. 48) 188
Pertella. R. v., (44 C. L. J. 791) 417
Petersky, R. v., (1 C. C. C 91)
307 375
Petrie, R. v.. (20 O. R. 317) 76,' 416
Pettipas, (No. 1), R. v., (17 C.
C. C. 448) 419
Pettipas. (No. 2), R. v., (18 C.
C. C. 74) 430
Pfister, R. v., (19 C. C. C. 92) 262
Phelps V. Prew, (3 E. & B. 430) 348
Phillips, Ex parte, (24 N. B. R.
119) 294
Phillips, R. v., (11 C. C. C. 89)
111, 179. 223
Phillips V. Eyre, (L. R. 6 Q. B.
15) 55
Phinnev, R. v., (No. 1), (6 C.
C. C. 469) 47
XXVIU
TABLE OF CASES.
PAGE
rhiuney, R. v., (7 C. C. C.
280) 421
Phipps, In re, (8 A. R. 77) .. 221
Phipps, Re, (11 W. R. 730) .. 466
Piaget, Re, (21 C. L. T. Occ. N.
536) 474
Picard, R. v., (21 C. C. C. 250)
129 281
Pickard, R. v., (14 C. C C. 33)' 51
Pickering v. Willoughby,
[1907], 2 K. B. 296 243
Piggott V. French. (21 O. L. R.
87) 95
Pinney, R. v., (5 C. & P. 254-
261) 58
Pippy, Re, (14 C. C. C. 305) 236
Pisoni, R. v., (6 Terr. L. R.
238 ; 4 W. L. R. 527) 405
Placide Richard, Re, (12 C. C.
C. 204) 361, 459, 460
Plante v. Cliche. (17 C. C. C. 43,
20 C. C. C. 186) . . .262, 263, 367
Plummer, R. v., [1902], 2 K.
B. 339 70
Plunkett, Re, (1 C. C. C. 365,
3 B. C. R. 484) 223, 509, 516
Pocock V. Moore, (Ry. & M.
321) 163
Pollard, R. v., (14 L. T. 599) 356
Pollard, R. v.. (15 C. C C. 74) 421
PoUey T. Fordham, [1904]. 2
K. B. 345; 90 L. T. 755 .. 97
Pope, R. v., (22 C. C. C. 327)
384, 451
Porte, R. v., (18 M. R. 222, 14
C. C. C. 238) 135, 274
Porter, Ex parte, (28 N. B. R.
587 ) 271
Powell, R."v.',"(7 C. &'P. 640) 441
Power, R. v., (6 C. C. C. 378) 318
Power, R. v., (14 C. C. C. 264)
352 368
Pratten, R. v., (6 T. R. 559)' 283
Prestldge v. Woodman, (1 B. &
Q_ J3'\ _ gg
Preston, R.' v.," (9 C. C. C.
201) es
Preston. R. v., (12 Q. B. 825) 151
Price, R. v., (12 Q. B. D. 247) 173
Price V. Manning, (42 Ch. D.
372) 546
Price V. Seeley, (10 CI. & Fin.
28) 165
Pring V. Wyatt, (7 C. C. C. 60) 137
Proctor V. Parker. (3 C. O. C.
374, 12 M. R. 528) lo5, 255, 278
Prokopase, R. v., (23 C. C. C.
189) 383
Prosiloski, R. v., (No. 2), (16
C. C. C. 139) 208
Queen's Case, The, (2 Brod. &
Bing. 284) 201
Quinn, R. v., (2 C. C. C. 153) 262
Quinn, R. v., (10 C. C. C. 412)
41. 4.52
Quick, R. v., (17 C. C. C. 61)
Quirk, Er parte, (33 C. L. J.
405)
Quirk, R. v., (16 C. C. C 391)
48.
PAOH
377
147
369
Radford v. MacDonald, (18 A.
R. 167) 204
Raffles, R. v., (45 L. J. M. C.
61) 351
Rahamat Ali, R. v., (16 C. C.
C. 193) 400, 406
Ralph V. HurreU, (44 L. J. M.
C. 145) 185
Rand, R. v., (22 C. C. C. 147) 79
Rand. R. v., (L. R. 1 Q. B.
230) 78
Randolph, R. v., (4 C. C. C.
165) 393, 427
Ratt V. Parkinson, (20 L. J. M.
C. 208) 295
Rattislaw, R, v., (5 Dowl. C. P.
539) 517
Rawding, R. v., (7 C. C. C. 436) 306
Rawlins v. Ellis, (16 M. & W.
172) 145
Ray worth. Ex parte, (34 N. B.
R. 74) 299
Reason, R. v., (6 T. R. 326) . ?68
Recorder of Toronto, Re. (23 U.
C. R. 376) 103
Reddin, R. v.. (16 C. C. C. 163) 499
Redford v. Birley, (1 St. Tr. N.
S. 1071-1239) 56
Reece v. MiUer, (8 Q. B. D.
626) 84
Reed v. King, (30 L. T. 290) 546
Reed v. Nutt, (24 Q. B. D.
669) 296
Reedy, R. v., (14 C. C. C. 256)
76, 366
Reid, R. v., (12 C. C. C. 352) 410
Reid, R. v.. (14 C. C. C. 329) 80
Reid V. Maybee, (31 U. C. C. P.
384 108
Renaud, R. v.. (15 C. C. C. 246)
314, 498
Reno. R. v., (4 P. R. 281) 465. 468
Revel. R. v., (1 Str. 420) 240
Rice, Re, (20 N. S. R. 294) ... 291
Rice V. Howard, (16 Q. B. D.
681) 546
Richard. Re, Placide, (12 C C.
C. 204) 361, 459, 460
Richards, R. v., (1 M. & Rob.
177) 130
Richards, R v., (20 L. J. Q. B.
351) 177
Richardson, R. v., (8 0. R. 651) 120
Richardson, R. v., (17 O. R.
729) 511
•Richardson, R. v., (20 O. R.
514) 271
Ridehaugh, R. v., (7 C. C. C.
340) 408, 410
TABLE OF CASES.
XXIX
Ridgway, R. v., (5 B. & Aid.
527) 268
Rivers, R. v., (7 C. & P. 177) 211
Roach, R. v., (23 C. C. C. 28) 286
Robert, R. v., (17 C. C. C. 194) 208
Roberts, Ex parte, (50 J. P.
.567) 516
Roberts, R. v., (4 C. C. C. 253) 444
Roberts, R. v., (2 F. & F. 272) 465
Robichaud v. T^eBlanc,- (34 C.
L. J. 324) 83
Robidoux. R. v., (2 C. C. C. 19) 425
Robinet, R. v.. (2 C. C. C. 382.
16 P. R. 49) 511, 514
Robinson, R. v., (2 Burr. 799) 290
Robinson, R. v., (12 C. C C.
447) 308, 481
Robinson, Re, (23 L. J. Q. B.
286) 200
Robinson v. Currey, (7 Q. B. D.
465) 437
Robinson v. District of Saanich,
(20 C. C. C. 241) 234
Robinson v. Lenaghan, (2 Ex.
333) 147
Roche, R. v., (Car. & Marsh
341) 208
Roche. R. v., (32 6. R. 20, 4
C. C. C. 64) 300
Roddam, R. v., (Cowp. 672).. 464
Roderick, R. v., (7 C. & P. 795) 64
Rodgers v. Richards, [1892] 1
Q. B. 555; 66 L. T. 261 266
Rodrigue, R. v., (13 C. C. C.
249) 159
Rogers, Ex parte, (7 C. C. C.
314) 272
Rogers, R. v., (6 C. C. C.
419 187
Rogers, R. v., (11 C. C. C. 257)
366, 369
Rogers v. Hassard. (2 A. R.
507) 120
Rogers v Hawken, (19 Cox
122) 217
Romp, R. v., (17 O- R. 567).. 220
Rondeau. R. v., (9 C. C. C.
523) 348. 497
Roscommon, JJ.. R. v., [1894]
2 Ir. 158 224
Rose, R. v., (18 Cox 717) 214
Rose, R. v., (3 D. & L. 359) . . 516
Ross, Ex parte, (1 C. C. C.
153) 49.?. 497
Ross, Re, (3 P. R. 301: 10 U.
C. L. J. 163) 460, 468, 480
Rossi, R. v., (17 C. C. C. 182) 217
Rouleau, R. v., (17 €. C. C.
281) 211
Routledge v. Hislop, (29 L. J.
M. C. 90) 37
Roy, Ex parte, (12 C. C. C.
g33\ g3
Roy, R. V..' '('3 C. 'C."C. 472) ." .' 60
Rovds, R. v.. (10 B. r. R.407> 217
Royston. Re, (15 C. C. C. 96) 468
PAGE
Rudd's Case, (1 Cowper 333) 233
Rudland, R. v., (14 C. C. C.
22) 460
Rudplph, R. v., (17 C. C. C.
206) 287, 444, 502, 506
Ruggles, Re, (5 C. C. C. 163) 494
Russell, R. v., (14 D. L. R.
792; 22 C. C. C. 131) 51
Russen v. Tjucas, (1 C. & P.
153) 163
Ruthven. Re, (2 C. C. C. 39) 233
Rvan, R. v., (9 C. C. C. 347;
9 O. L. R. 137) 216
Ryer v. Plows, In re, (46 U. C.
R. 206) 280, 348
Sabine. R. v., (8 C. C. C. 70) 376
Sadler, R. v., (2 Chit. 519).. 286
Saffery, Ex parte, (5 Ch. D.
365) 330, 337
Sainsbury, R. v., (4 T. R. 456)
85, 240
Salop, J J.. R. v., (24 L. J. M.
C. 14; 4 E. & B. 257) 334
Salter, R. v., (2 Chit's. Rep.
109) 467
Sam Chak, (No. 1), R. v., (12
C. C. C. 495) 419
Sams & Toronto, Re, (9 U. C.
R. 181) 349
Sanders, R. v., (L. R. 1 C. C.
R. 7S) 161
Sander's Case, (1 Wm. Saund.
262) 239
Sanderson, R. v., (12 O. R.
178) 303, 306
Sansome, R. v., (4 Cox 203) . .
Sarah Smith, R. v., (2 C. C.
C. 485)
Sarah Smith, R. v., (9 C. C.
C. 338) 393,
Sarault. Re, (9 C. C. C. 448)
47. 184.
Sattler, R. v., (Dears. & B.
525)
Saunders. R. v., [1899] 1 Q.
B. 490 416
Scaife, R. v., (9 Dowl. 5.53) . .
Scattergood v. Sylvester, (19 L.
J. Q. B. 447)
Schofield, Ex parte, [1891] 2
Q. B. 429
Schofield and City of Toronto.
Re. (22 C. C. C. 93)
Schol V. Kay, (5 Allen, N. B.
244)
Scott, R. v., (20 O. R. 646) . .
Scott, R. v., (33 L. J. M. C.
15)
Scott y. Baring, (18 Cox. 128)
Scott y. Commissioners. (42
Am. St. Rep. 371)
Scott y. Reburn, (25 O. R.)
4.50) 98,
■Scott y. Stansfield. (L. R. 3
Ex. 220) 90
213
508
395
195
53
220
439
356
150
37
209
246
83
542
99
XXX
TABLE OF CASES.
PAGE
Seribner, Ex parte, (32 N. B.
R. 175) 80
ScuUy, R. v., (5 C. C. C. 1).. 109
Searle, R. v., (1 M. & Rob. 75) 46
Sears, R. v., (17 C. L. T. Occ.
N. 124) 415
See Wo, R. v., (16 C. C. C.
213) 392
Seeley, Ex parte, (13 C. C. C.
259) 88, 424
Seeley, Re, (14 C. C. C. 270;
41 S. C. R. 5) .... 89, 406, 477
Seitz, Ex parte, (3 C. C. C.
127) 473
Selig, Ex parte, (17 C. C. C.
70) 440, 498
Sellars, R. v., (9 C. C. C. 153) 49
Sells V. Hoare, (3 Brod. &
Ring. 232) 201
Semayne's Case, (5 Rep. 92)
164, 165, 166
Seriesky, Ex parte, (21 C. C. C.
140) 488
Seward, R. v., (1 A. & E. 706) 68
Sewell V. Olive, (4 Allan N. B.
394) 94
Sharpe, R. v., (18 C. C. C. 132)
383 423
Sharpe, R. v., (5 P. R. 135)' 132
Shaw, R. v., (34 L. J. M. C.
169) 152
Shaw, R. v., (23 U. C. R. 616) 281
Shebbeare, R. v., (1 Burr. 460) 231
Sheddon v. Patrick, (1 Mac-
queen, H. of L. C. 535) 490
Shepherd, R. v., (6 C. C. C.
463) .... 116, 129, 409, 411, 412
Sheriff of Warwickshire, R. v.,
(3 W. R. 164) 79
Shiel, R. v., (19 Cox. 507) .. 356
Shing. R. v., (17 C. C. C. 463;
20 M. R. 214) .393, 403, 427, 428
Siddal V. Gibson, (17 U. C R.
98) 110
Simington v. Colbourne, (4 C.
C C. 367) 336, 346
Simmonds, R. v., (16 C. C. C.
498) 362
Simmons, R. v., (14 C. C. C.
5) 363, 482
Simons, R. v., (6 C. & P. 540) 542
Simpson, Ex parte, (37 C. L.
J. 510) 146
Simpson, R. v., (10 Mod. 379) 141
Simpson v. Lock, (7 C. C. C.
294) 280. 344, 3.52
Simpson v. Proestler, (21 C. C.
C. 415) ,377
Simpson v. Wells, (41 L. J. M.
C. 105) 83
Sinclair, R. v., (12 C. C. C. 20)
70, 415
Sinden v. Brown, (17 A. R.
173) 94, 99, 311
Sing. R. v., (6 C. C. C. 156) 253
PAGE
Sing Kee, Re, (5 C. C. C. 86)
253, 449, 494, 506
Sing Kee, R. v., (14 C. C. C.
420) 326
Siteman, R. v., (6 C. C. C. 224) 430
Skelton, R. v., (4 C. C. C. 467)
50, 211, 212
Skinner, R. v., (9 C. C. C. 558)
3()6 468
Slaughenwhite, R. v., (9 C. c!
C. 53, 173; 35 S. C. R. 607)
50, 423
Slavin, R. v., (21 C. L. T. Occ.
N. 54, 7 C. C. C. 175) 50
Small V. Warr, (47 J. P. 20) 49
Smith, Ex parte, John, (2 D.
& R. 461) 286
Smith, Ex parte, (27 L. J. M.
C. 186) 465, 4^
Smith, R. v., (2 C. C. C. 485) 274
Smith's Bail, Re Sarah, (6 C.
C. C. 416) 318
Smith (Sarah), R. v., (2 C. C.
C. 485) 508
Smith, Sarah, R. v., (9 C. C.
C. 338) 393, 395
Smith, R. v., (16 C. C. C. 425)
254, 262. 301
Smith, R. v., (19 C. C. C. 253) 450
Smith, R. v., (2 C. & K. 207) 221
Smith, R. v., (L. R. 10 Q. B.
604) 146, 147, 148
Smith, R. v., (31 O. R. 224) 284
Smith, R. v., (1 Stark. 242).. 211
Smith, R. v., (1 Stra. 126) 225
Smith, R. v., (8 T. R. 590) 268
Smith, R. v., (34 U. C. R. 552) 117
Smith, R. v., (38 U. C R. 218,
227) 60
Smith V. Butler, (16 Q. B. D.
349) 354
Smith V. Evans, (13 C. P. 60) 137
Smith V. Moody, [1903] 1 K.
B. 56 ...265, 274, 275. 276, 277
Smith V. Simmons, (15 N. B.
R. 203) 101
Smitheman v. The King, (9 C.
C. C. 17 ; 35 S. C. R. 490) . . 130
Smithies R. v.. (5 C. & P. 332) 542
Snelgrove, R. v., (12 C. C. C.
JQ^\ 3g
Somers, R.* v.," '(i C." C. ' C. ' 46 :
24 O. R. 244) .... 273, 277, 375
Somerset v. Wade, [1894] 1 Q.
B. .576 48
Sonier, Ex parte, (2 C. C. C.
121) 120, 122, 155
Soper, R. v., (3 B. & C. 857) 267
Soucie, R. v.. (1 P. & B.; 17
N. B. R. 611) 212
Southev V. Nash. (7 C. & P.
632)' 206, 265
Southwick V. Hare, (15 P. R.
222) 102
Southwick V. Hare, (24 O. R.
528) 168
TABLE OF CASES.
XXXI
Stone,
PAGE
352
112
356
400
76
504
South Staffordshire v
(19 Q. B. D. 168)
Spain, R. v., (18 O. R. 385)
129, 277
Sparks, R. v., (12 C. C. C.
184)
Sparling, R. v., (21 W. R. 461;
60 L. J. M. C. 157)
Spates, R. v., (22 C. C. C.
269)
Speed. R. v., (17 C. C. C. 24)
122, 368
Spellman, R. v.. (12 C. C. C.
99) 75,
Spooner, R, v., (4 C. C. C. 209)
444, 468, 502,
Sprague, Ex parte, (8 C. C C.
109) 336, 345
Sproule, R. v., (14 O. R. 375)
76, 264
Sproule, In re, (12 S. C. R.
140) 404, 459, 469, 472
Sprung V. Anderson, (23 C. P.
152) 95, 98,
Squier v. Wilson, (15 C. P.
284)
St. Albans, J J., R. v., (22 L. J.
M. C. 142)
St. Albans, JJ., R. v., (5 D. &
(R. 538; 3 B. & C. 698)
St. Botolph V. White Chapel,
(2 L. T. 507)
St. Clair, R. v., (3 C. C. C.
551 ; 27 A. R. 308)
396, 404, 416, 464, 472,
St. Denis, R. v., (8 P. R. 16)
St. Francois v. Continental H.
& L. Co., [1909 A. C. 194 . .
St. James v. St. Mary, (29 L.
J. M. C. 26) i56,
St. John, R. v., (9 C. & P. 40)
St. Katherine Dock Co., R. v.,
(4 B. & Ad. 360)
St. Louis, R. v., (1 C C. C.
141) 118. 223,
St. Maurice, R. v., (16 Q. B.
908)
St. Paul Covent-Garden, R. v.,
(7 Q. B. 232; 14 L. J. M.
€. 109)
St. Pierre, R. v., (5 iC. C. C
365)
St. Pierre, R. v., (19 C. C. C.
82)
Stadium, (The), R. v., (23 C.
C. C. 84)
Stafford, J J., R. v., (3 A. & E.
425)
Staffordshire, JJ., R. v., (7 E.
& B. 935) 346
Stagg, Re, (No. 1), (20 C. C.
C. 306) 479
99
9
489
488
357
482
472
357
130
108
436
129
290
495
205
379
142
Sta£
Re, (No. 2), (20 C. C.
C. 310) 479
PAGE
Stamp V. Sweetland, (14 Lr. J.
M. C. 184) 92
Stanhope, R. v., (12 A. & E.
620) 316
Stanhope v. Thorsby, (L. R. 1
C. P. 420; 14 L. T. 332) ... 355
Stapylton, R. v., (8 Cox. 69) 184
Stark, R. v., (19 C. C. C. 67 ;
21 M. R. 345) 444
Stark V. (Schuster, (14 M. R.
672) 5
Starkey, R. v., (6 M. R. 588) 495
Starkey, R. v., (7 M. R. 45) . . 495
Starkey, R. v., (7 M. R. 489)
COS, 495
Starr v, Heales, (4 R. & G.
N. S. R. 84) 286
Stather, Ex parte, (25 N. B.
R. 374) 477
Staverton v. Ashburton, (24 L.
J. M. C. 53) . . 74
Steele, R. v., (2 C €. C. 433)
81, 82
Steeves, Ex parte, (15 C. C. C.
160) 259
Stenhouse, Re, (21 C. C. C.
182) 455
Stephens, R. v., (35 L. J. Q. B.
251) 244
Stephens v. Stephens, (24 C. P.
424) 120
Stephenson, R. v., (20 C. C. C.
297) 251
Stephenson, R. v., (13 Q. B.
D. 331; 15 Cox. 679) 173
Stern, Re, (7 C. C. C. 191) 475
Sternaman, R. v., (1 C. C. C.
1) 50
Stevens, R. v., (12 C. C. C. 20) 415
Stevens, R. v.. (31 N. S. R.
125) 518
Steventon, iR. v., (1 C. & K.
55) 130
Stewart, R. v., (4 C. C. C 131) 232
Stewart, R. v., (R. & R. 363) 59
Stewart v. Hazen, (2 Allan N.
B. R. 254) 95
Stimpson, R. v., (4 B. & S.
301) 82. 83
Stinson, R. v., (10 C. C. C. 16) 376
Stinson v. Guess, (1 C. L. J.
19) 105
Stock, R. v., (8 A. & E. 405) 357
Stockton, R. v., (7 Q. B. 520) 73
Stokes, R. v., (3 C. & K. 185) 46
Stone, R. v., (1 East. 649) . . 152
Stone, R. v., (23 O. R. 46).. 82
Stone V. VaUee, (18 C. C. C.
222) 163
Strang v.' Geilatly, * (8 C.* C. " C.
17) 109, 324. 505
Strauss, R. v., (5 B. C. R. 486 ;
1 C. C. C. 103) 283
Stripp, R. v., (7 Cox. 97; Dears.
648) 208, 213
XXXll
TABLE OF CASES.
PAGE
Suck Sin, R. v., (18 C. C. C.
266; 20 M. R. 720) .... 80, 113
Suffolk, J J. of, R. v., (18 Q. B.
416) 78
Suffolk, J J., of, R. v., (21 L.
J. M. C. 169) 516
Sullivan, R. v., (16 Cox. 347) . . 214
Sunday Laws, In re, (25 C L.
T. Occ. N. 77; 35 S. C. R.
581) 5
Sunderland. JJ.. of, R. v.,
[1901] 2 K. B. 357 78, 82
Superior v. City of Montreal,
(3 C. C. C. 379) 322
Surrey, J J. of, R. v., (5 A. &
E. 701) 321
Swan, R. v., (8 €. C. C. 86) 363
SydsorfE v. R., (11 Q. B. 245) 68
Symonds v. Kurtz, (16 Cox
726; 53 J. P. 727) .... 161, 312
Syred v. Carruthers, (E. B. &
E. 469; 27 L. J. M. C. 273)
353, 354
Tait, Ex parte, (10 C. C. C.
513) 74
Talbot's Bail, Re, (23 O. R. 65) 236
Tanghe, R. v., (8 C. C. C. 160) 499
Tamblyn, R. v., (25 O. R, 645) 69
Tano, R. v., (14 C. C. C. 440) 132
Taylor, R. v., (3 B. & P. 596) 131
Taylor, R. v., (5 C. C. C. 89)
64, 137, 138
Taylor, R. v., (22 C. C. C. 234) 451
Taylor, R. v., (13 Cox. 77) . .46, 213
Taylor, R. v., (6 Terr. L. R.
238 ; 4 W. L. R. 527) 405
Taylor, R. v.. (S U. C. R. 257) 83
Taylor \. Clemson, (11 CI. &
Fin. 610) 151
Taylor v. Fenwick, (7 T. R.
635) 100
Ta.vlor v. McCullough, (8 O. R.
309) 37
Taylor v. Oram, (31 L. J. M.
C. 252) 351, 354
Taylor v. Scott, (30 O. R. 475) 480
Teasdale, R. v., (16 C. C. C.
53) 480
T. Eaton Co., R. v., (2 C. C.
C. 352) 150
Tebo. R. v., (1 Terr. L. R. 196) 301
Teed, Ex parte, (21 C. C. C.
255) 127
Tessier v. Desnoyers, (Q. R. 12
S. C. 35) IJI
Thaw. Re, (No. 2), (22 C. C.
C. 3) 402
Thaw, Re, (No. 3), (22 C. C.
C. 8 1 464
Thomas. R. v., (7 C. & P. 817)
45, 20S
Thomas, R. v.. (4 M. & S. 442) 491
PAGE
Thomas Lynch, R. v., (12 C. C.
C. 142) 74
Thomas v. Churton, (2 B. &
S. 475) 173
Thomas v. Van Os, (2 Q. B.
448) 246
Thompson, R, v., (15 C. C. C.
162) 119
Thompson, R. v., (22 C. C. C.
78) 374
Thompson, R. v.. [1893] 2 Q.
B. 12; 17 Cox. 641
214, 215, 218
Thompson, Re, (30 L. J. M. C.
29) 29g
Thompson v. Coulter, (34 S. C.
R. 261) 204
Thompson v. Desnoyers, (3 C.
C. C. 68) 109, 115
Thompson v. Williamson, (16 P.
R. 368) 102
Thomson v. Wishart, (19 M. R.
340; 16 C. C. C. 446) 36
Thome v. Jackson, (3 C. B.
661) 129
Thorpe v. Oliver, (20 U. C. R.
264) 94
Thorpe v. Priestnall. [1897] (1
Q. B. 159 123
Tierney v. Choquet, (9 Q. P. R.
229) 497, 514
Tinson, Ex parte, (L. R. 5 Ex.
2,57) 481, 492
Tisdale, R. v., (20 U. C. R.
272) 106, 435
Todd, R. v., (4 C. C. C. 514;
13 M. R. 364) 216, 219
Tompkins, Ex parte, (12 C. C.
C. 552) 149, 151, 255, 360
Toronto Ry. Co., R. v., (2 C.
C. C. 471) 150, 256
Torpey, R. v., (12 Cox. 45) . . 52
Totness, R. v., (18 L. J. M. C.
46) 73
Townsend, R. v., (5 C. C. C.
]^43) 323
Townsend, R. v., (No. 2), (ii
C. C. C. 115; 12 C. C. C.
509) 371
Townsend, R. v., (No. 3), (11
C. C. C. 153) 300
Townsend, R. v., (No. 5), (13
C. C. C. 209) 514
Townsend v. Beckwith, (14 C.
C. C. 353) 371
Townshend, R. v., (No. 2), (6
C. C. C. 519) 324
Townshend, R. v., (17 C. C.
C. 94) 74
Townshend v. Read, (4 L. T.
447) 357
Tov Moon. R. v., (19 C. C. C.
33: 21 M. R. 527)
244, 291, 505, 507
TABIvE OF CASES.
XXXlll
PAGE
Traves, Re, (10 C. C. C. 63)
494, 497
Traynor, R. v., (4 C. C. C. 410)
154, 181
Treanor, R. v., (14 C. C. C.
443) 51
Tregarthen, R. v., (5 B. & A.
678) 319
Treharne, R. v., (1 Moo. C. C.
298) 126, 130
Trelawney, R. v., (1 T. R. 222) 134
Tremblay, Ex parte, (6 C. C.
C. 147) 476, 480
Tremblay v. Bernier, (21 S. C.
R. 309) 37
Tremblay v. City of Quebec, (16
C. C. C. 487) 378
Trepanier, R. v., (4 C. C. C.
259) 419
Trepauier, R. v., (19 C. C. C.
290) 220
Trepanier, In re, (12 S. C. R.
Ill) 458, 507
Trevane, R. v., (6 C. C. C. 125 ;
4 O. L. R. 875) 188
Troop, R. v., (2 C. C. C. 22) . . 547
Troop (The), R. v., (29 S. C.
R. 673) 502, 508
Trottier, R. v., (22 C. C. C.
102) 329, 333, 336
Truelove, R. v., (14 Cox. 408) 256
Truelove, R. v., (5 Q. B. D.
336) 151, 334
Tucker. R. v., (10 C. C. C. 217) 337
Tupper V. Murphy, (3 R. & G.
N. S. 173) 79
Turnbull, R. v., (15 C. C. C. 1) 353
Turner, R. v., (5 M. & S. 206) 253
Turner, R. v., (15 East. 570) 236
Tutty, R. v., (9 C. C. C. 544) 216
Tyrrell v. Flannagan, [1901] 2
Q. B. Ir. 423 356
Uncles. R. v., (I. R. 8 C. L.
50. 58) 214
Union Colliery v. The Queen, (4
C. C. C. 400; 31 S. C. R. 81)
42, 150
United States v. Browne, (No.
2), (11 C. C. C. 167) .. 464. 481
United States v. Gaynor. (9 C.
C. C. 205) 467, 478
United States v. Webber, (No.
1). (20 C. C. C. 1) 470
United States v. Webber, (No.
2), (20 C. C. C. 6) 470
United States v. Weiss, (8 C.
C. C. 62) 475, 478
University of Cambridge, R. v.,
(8 Mod. 1.54) 153
Upper V. McFarland, (5 U. C.
R. 101) 99
Upton V. Brown, (21 C. C. C.
190) 38, 2.".2
PAG£
Urquhart, R. v., (4 C. C. C.
256) 320, 507
Vachon, R. v., (3 C. C. C. 558) 49
Valin V. Langlois, (3 S. C. R.
1) 3
Vamplew, R. v., (3 F. & F. 520) 44
Van Buskirk, Ex parte, (13 C.
C. C. 234) 82, 269
Vancini, Re, (No. 2), (8 C. C.
C. 228; 34 S. C. R. 621) . .88, 403
Van Meter, R. v., (11 C. C. C.
207) 543
Vantassel, (No. 1), R. v., (5 C.
€. C. 128) 272, 300
Vantassel, (No. 2), R. v., (5 C.
C. C. 133) 272, .300
Vaughan, R. v., (Holt. 689).. 206
Vaughan. R. v., (13 St. Trials,
485) 72
Vaughan, Ex parte, (L. R. 2 Q.
B. 114) 84
Vaughton v. Bradshaw, (9 C. B.
N. S. 103 ; 30 L. J. C. P. 93) 296
Vaux's Case, (4 Rep. 44) .... 59
Venables v. Hardman, (1 E. &
E. 79) 358
Venot, R. v., (6 C. C. C. 209) 469
Verdon, R. v., (8 C. C. C. 352) 372
Verral, R. v., (6 C. C C. 325)
187 193
Viau, R. v., (Q. R. 7 Q. B. 362)' 2ll9
Vincent, R. v., (22 C. C. C. 98) 264
Vincent, R. v., (9 C. & P. 91) 56
Vrooman, R. v., (3 M. R. 509) 153
Waite. R. v., [1892] 2 Q. B.
600 44
Wakefield v. West Midland &
G. Ry., (10 Cox 162) 82
Walden, R. v., (9 Q. B. 76) . . 167
Waldon, R. v., (22 C. C. C. 122,
405) 375, 379
W^alkem, R. v., (14 C. C. C.
122) 62, 419
Walker, R. v., (12 C. C. C. 197) 548
Walker, R. v., (13 O. R. 83) . . 121
Walker, R. v., (L. R. 10 Q. B.
.355) 290
Walker, R. v., (2 M. & R. 446) 39
Walker v. Matthews, (8 Q. B.
D. 109) 440
Wallace, Ex parte, (19 C. L.
T. Occ. N. 406) 146
Wallace. Ex parte, (26 N. B.
R. 593) 80
Wallace, R. v., (4 O. R. 127)
281 494
Walsh, R. v., (2 O. R. 206) . .'
270, 281. .343
Walsh. R. v., (22 C. C. C. 145) 376
Walsh & T^amont, R. v., (8 C.
C. C. 101) 409
Walton. R. v.. (10 C. C. C. 269)
428. 468
XXXIV
TABLE OF CASES.
PAGE
Wambolt, R. v., (14 C. C. C.
160) 243
Warburton, R. v., (L, R. 1 C.
C. R. 274) 69
Ward. R. v., (3 Cox. 279) .. 151
Warilow, R. v., (14 C. C. C.
117) 260
Warner, R. v., (Russ. on Cr.
7th ed. 2174 n.) 215
Washington, R. v„ (46 U. C.
R. 221) 279, 342
Wason, Ex parte, (L. R. 4 Q.
B. 573) 223
Waters, R. v., (12 Cox. 390)
182, 200, 222
Watier, R. v., (17 C. C C. 9) 51
Watkins, Ex parte, (26 J. P.
71) 346
Watkins v. Major, (L. R. 10 C.
P. 662; 44 L. J. M. C. 164;
33 L. T. R. 352) 48, 83
Watson, R. v., (48 J. P. 149) 358
Watson's Case, (Leonard), (9
A. & E. 731) 466, 468
Watts, Re, (5 C C. C. 538)
234 475
Watts, R. v., (33 L. J. M. c!
63) 154, 260
Waye v. Thompson, (15 Q. B.
D. 342) 246
Weatheral, R. v., (18 C. C. C.
.372) 376
Weatherall, Re, (1 O. L. R.
542) 480, 485
Webb, R. v., (11 Cox. 133) . . 538
Webb V. Spears, (15 P. R. 232) 97
Webber, Re, (19 C. C. C. 515) 470
Webster, R. v., (3 T. R. 388) 102
Wehlan, R. v., (45 U. C. R.
396) 348, 512
Weir, R. v., (1 B. & C. 288) . . 310
Weir, R. v., (No. 5), (3 C. C.
C. 499) 133, 136
Weiss, R. v., (No. 1), 21 C. C.
C. 438) 40, 472, 473
Weiss, R. v., (No. 2), (22 C.
C. C. 42) 40. 41, 159, 495
Welch, Ex parte, (2 C. C. C.
35) 317
Welch V. Richards. (Barnes
468) 225
Weller v. Toke, (9 East. 364) 98
Wellman, R. v., (14 C. C. C.
335) SO. 363
Wells R. v., (18 C. C. C. 377) 376
Wells V. Abrahams, (L. R. 7
Q. B. 554) 37
Wells V. Fletcher. (5 C. & P.
12> .543
Welsh, Ex parte, (2 C. C. C. 35) 223
Wemvss v. Hopkins, (L. R. 10
Q. B. 378) 39. 40
West. R. v., [18981 1 Q. B.
174 423
West Houghton. R. v., (5 Q.
B. 300) 332
PAGE
West Riding Yorkshire, JJ. of,
R. v., (3 T. R. 776) 334, 340
West Riding Yorkshire, JJ. of,
R. v., (7 B. & C. 678) 334
Westmore v. Paine, [1891] 1 Q.
B. 482 351
Weston V. Fournier, (14 East.
491) 97
Whalen, R. v., (4 C. C. C. 277) 274
Whalen, Ex parte, (29 N. B.
R. 146) 272
Whately, R. v., (4 M. & Ry.
431) 103
Wheatman, R. v., (1 Doug. 345)
117, 143, 266
Whiffin, R. v., (4 C. C. C. 141)
271. 279, 506, 508
Whiff en v. J J. of Mialing,
[1892] 1 Q. B. 362 1.51
Whistnant, R. v., (20 C. C. C.
322) 204
Whitaker, R. v., (24 O. R. 437) 515
White, R. v., (4 C. C C. 430;
31 S. C. R. 383) . . .185, 267, 459
White, R. v., (15 C. C. C. 30) 219
White, R. v., (19 C. C. C. 156) 329
White, R. v., (21 C. P. 354) . . 284
White, R. v., (43 J. P.) 246
White V. Feast, (L. R. 7 Q. B.
352 ) 84
White V. Hainm, (36 n! B. R.
237) 100
White V. Leek, (18 C. C. C.
337) 302, 369
White V. Spettigue, (13 M. &
W. 603) 439
Whiteside, R. v., (8 C. C. C.
478) 247, 478
Whiting, R. v., (14 C. C. C.
414) 267
Whittier v. Diblee, (15 N. B.
R. 243) 93
Whittle V. Frankland. (31 L. J.
M. C. 81; 2 B. & S. 49) ... '
266, 2S0
Wiekham v. Lee, (12 Q. B.521) 83
Wilcox V. Gotfrey, (26 L. T.
N. S. 481 ) 205
Wiles V. Cooper, (3 A. & E.
.524) 143
Wilkes. R. v., (4 Burr. 25,39) 241
Wilkins, R. v., (17 C. C. C. 20) 263
Wilkins, R. v., [1907] 2 K. B.
.380 319
Wilkins v. Wright. (2 Cr. & M.
191) 240
Wilkinson, R. v.. (8 C. & P.
662) 213
Williams, Ex parte. (13 Price
623) 226
Williams, In re. (21 L. J. M.
C. 46) 147
Williams, R. v., (8 M. R. 342) .507
Williams, R. v., (10 C. C. C.
3.30) 446
Williams. R. v., (28 O. R. .583) .541
TABLE OF CASES.
XXXV
PAGE
WiUiams, R. v., (21 L. J. M. C.
150) 266
WdUiams, R. v., (37 U. C. R.
540) 135, 282
Williamson, R. v., (13 C. C C.
195) 348
Wilson, Ex parte, (14 C. C. C.
32) 282
Wilson, Ex parte, (15 C. C. C.
264) 80, 371
Wilson, R. v., (21 C. C. C. 105) 49
Wilson, R. v., (Dears. & B. 157) 223
Wilson, R. v., (35 N. B. R.461) 485
Wilson V. Rastall, (4 T. R. 757) 241
Wilson V. Stewart, (3 B. & S.
913) 244
Wiltshire, J J. of, R. v. (8 L.
T. 242) 256
Windham, R. v., (1 Cowp. 377) 108
Winegarner, R. v., (17 O. R.
208) 173
Wing V. S-icotte, (10 C. €. C.
171) 362, 497
Winkworth, R. v., (4 C. & P.
444) 54;j^
Winsor, 'r.' V.,' '(10 Cox'c.' C.
276) 144
Win ton, R. v., (5 T. R. 89) ... 466
Winwick. R. v. Inhabitants of,
(8 T. R. 455) 157
Wipper. R. v., (5 C. C. C. 17) 26.*?
Wirth, R. v., (1 C. C. C. 231) 398
Wise V. Denning, [1902] 1 K.
B. 175 319
Wishart, R. v., (18 C. C. C.
146) 475
WoUez, R. v., (8 Cox 337) .. 441
Wong On, R. v., (No. 1), (8
C. C. C. 342) 544
Wong On. R. v., (No. 2), (8
0. C. C. 343) 544
Wood, R. v., (5 E. & B. 49) . . 489
Woods, R. v., (19 C. L. T. Occ.
N. 18) 415
Woodcock's Case, (Leach C
500) 543
Woodhall, Ex parte, (20 Q. B.
D. 832) 480
Woodhouse v. Woods, (29 L. J.
M. C. 149) 352
Woodlock V. Dickie, (6 R. & G.
N. S. R. 86; 6 C. L. T. Occ.
N. 142) 286
Woodroof, R. v., (20 C. C. C,
17) 79, 208
Woodstock Electric Light Co.,
Ex parte, (4 C. C. C. 107) . . 150
Woodward, R. v., (1 Mood. C.
C 323) 130
Woodworth, R.' V.,' (21 C.' C. C.
187) 485
Worthington v. Jeffries, (L. R.
10 C. P. 379) 113
Wright, R. v., (10 C. C. C. 461)
425, 477
Wright V. Arnold, (6 M. R. 1) 112
Wright V. Court, (4 B. & C.
596) 163, 170
Wrottesley, R. v., (1 B. & Ad.
648) 83
Wyatt, R. v., (2 Ld. Ray. 1189)
163, 170, 310
Wyman, Ex parte, (5 C. C. C.
58) 260
Wyndham, R. v., (1 Stra. 4) 233
Yeadon, R. v., (31 L. J. M. C.
70) 422
Ying Foy, Re, (15 C. C. C. 14) 197
Yorkshire, J J. of, R. v., (1 A.
& E. 563) 488
Young, R. v., (4 C. C. C. 580)
236, 430
Young, R. v., (12 C. C. C. 109) 275
Young, R. v., (5 O. R. 184a) . . 281
Young and Pitts, R. v., (1 Burr.
556) 102
Young V. Higgon, (6 M. & W.
49) 98
Young V. Saylor, (23 O. R. 513 ;
20 A. R. 645) 249
Zickrick. R. v., (11 M. R. 452;
5 C. C. €. 380) ...112, 153, 521
Canadian Criminal Procedure-
CHAPTER I.
INTRODUCTION.
Canada has one advantage over the Mother Country in this,
that its criminal laws have been codified. Instead of the student,
the lawyer, the Judges, or the Magistrates, having to look through
a number of statutes to find the law relating to certain crimes, or
to ascertain the mode of procedure in criminal matters, they now
find it all in the Criminal Code, chapter 146 of the Eevised
Statutes of Canada (1906), and in the Acts since passed amending
the Code.
A bill entitled an "Act respecting the Criminal Law " was
introduced by Sir John Thompson, then Minister of Justice, in the
House of Commons in the year 1892, On the 2nd April, 1892,
Sir John Thompson moved the second reading of the Bill. The
Act was given the Royal assent on the 9th July, 1892, and came
into force on the first day of July, 1893, as provided in the second
section of the Act.
When moving the second reading of the Bill, Sir John Thomp-
son stated that it was founded on the English Draft Code, pre-
pared by the Eoyal Commission in 1880, on Stephens' Digest of
the Criminal Law (edition 1887), Burbidge's Digest of the Can-
adian Criminal Law (1889), and the Canadian Statutory Law.
England had been trying, for sixty years up to that time, to reduce
her criminal law into a Code, but it had not then, and has not yet,
been perfected by statute.
Sir John also said, " The present bill aims at a codification of
both Common and Statutory law, but it does not aim at completely
superseding the Common law, while it does aim at completely
superseding the Statutory law relating to crimes."
" The Common law will still exist and be referred to ; and in
that- respect the Code will have the elasticity so much desired by
those who are opposed to codification on general principles."
2 THE CRIMINAL CODE OF CANADA.
The use of the words " malice " and " maliciously " is discon-
tinued. The tenn " larceny " is abolished, and the term " theft "
adopted instead. The distinction between "felonies" and "mis-
demeanours " is abolished. In the Code all crimes are referred to
as " indictable offences/' or " offences punishable on summary con-
viction."
After the bill was read a second time, on motion of Sir John
Thompson, it was referred to a special committee of members of
both Houses of Parliament. The writer had the honour of being a
member of the Joint Committee, and recollects well the careful
consideration that the Committee gave to the Bill.
Both in Committee and in the House, Sir John Thompson
exhibited a wonderful mastery of the subject and an intimate know-
ledge of every detail, and it was no doubt in a large measure due
to this fact that the Bill passed with so little controversy.
" The Criminal Code " of Canada will always remain as a
monument to one of the ablest men who ever sat in the House of
Commons of Canada.
Full credit should also be given to the then Deputy Minister of
Justice, the late Mr. Justice Sedgewick, and to the then officers of
the Department of Justice who lent their valuable aid in drafting
the Code. Only those who, before the passing of this Act, were
engaged in practice before the Criminal Courts, or who sat upon
the bench as Judges, Magistrates or Justices of the Peace, can
fully recognize the boon that was conferred when the Criminal
Law and Criminal Procedure were all included in one statutory
enactment.
As previously stated, the Code came into force on the first day
of July, 1893. Since then the Code has been amended from time
to time, and was revised in 1906, at the time of the revision of the
other Dominion Statutes, and it has been amended several times
since.
These subsequent amendments will be noted in their proper
places in this edition.
Since the revision of the Code in 1906, no work relating to the
rights, powers and duties of Justices of the Peace and Magistrates
has been published in Canada, and it has been suggested to me that
the time is ripe for such a publication. I have undertaken the
work with considerable trepidation, since, while my desire will be
to make the contents of this book easily understood by those for
whom it is primarily intended, viz.. Justices of the Peace and
CRIMINAL LAW IN CANADA. 3
Magistrates, yet at the same time I cannot overlook the fact that
the work to be fully efficient must recommend itself to the legal pro-
fession and to those who may require to use it for reference, and
must therefore be more or less technical in statement. The work,
like others of a similar nature, will be founded upon the Criminal
Code, and is really a compilation of that statute so far as relates
to procedure before Magistrates and Justices of the Peace.
Criminal Law in Canada.
By section 91 of the British North America Act, 1867, the
exclusive legislative authority of the Parliament of Canada extends
to all matters coming within certain classes of subjects enumerated
therein, amongst them being (27) "The criminal law, except the
constitution of the Courts of criminal jurisdiction, but including
the procedure in criminal matters."
By section 92 of the same Act, it is provided that " In each
Province, the legislature may exclusively make laws in relation to
matters coming within the classes of subjects next hereinafter
enumerated."
Amongst these subjects are, " (14) The administration of jus-
tice in the Province, including the constitution, maintenance and
organizaation of provincial Courts, both of civil and of criminal
jurisdiction, and including procedure in civil matters in these
Courts."
It will thus be seen that to the Parliament of Canada belongs
the exclusive right to enact criminal laws, and laws relating to
criminal procedure.
The constitution, maintenance and organization of the Courts
before whom are to be tried those who are charged with crimes are
vested in the legislature of each Province.
By section 96 of the B. IST. A. Act, the Judges of the Superior,
District and County Courts in each Province, except those of the
Courts of Probate in Nova Scotia and New Brunswick, shall be
appointed by the Governor-General.' The salaries of all these
Judges are fixed and paid by the Parliament of Canada.
And by section 101 of the B. N. A. Act, " The Parliament of
Canada may, notwithstanding anything in this Act, from time to
time provide for the constitution, maintenance and organization of
a General Court of Appeal for Canada, and for the establishment
of any additional Courts ior the better administration of the laws
of Canada." See Valin v. Langlois, 3 S. C. R. 1.
4 CRIMINAL LAW IN CANADA.
By virtue of this enactment, Parliament may create new Courts
of criminal jurisdiction and appoint judicial officers, notwithstand-
ing that " the constitution, maintenance and organization of pro-
vincial Courts of criminal jurisdiction," is declared by section 92
to be exclusively within provincial jurisdiction. The only instance
in which advantage has been taken of this power is in the appoint-
ment of stipendiary Magistrates and the establishment of their
Courts along and in the vicinity of public works, such as railways.
These provisions of the British North America Act have often
been the subject of controversy, and decisions in Canadian Courts
and in the Privy Council.
In the case of the Citizens Insurance Co. v. Parsons, (1881)
1 Cartwright 265, 7 App. Cas. 96, both sections 91 and 92 of the
B. K. A. Act were much discussed. It was pointed out by the
Privy Council that no rule can be laid down to define the actual
limits of the various powers given to Parliament and the Legisla-
tures respectively.
In the Queen v. Holland, 4 C. C. C. at p. 79, Judge Drake
says : " The powers overlap, and in some instances the Provinces caii
legislate until the subject matter is dealt with as a whole by the
Dominion, When this takes place, provincial legislation has to
give way to the Dominion." '
See St. Francois v. Continental H. & L. Co. C. R., [1909]
A. C. 194.
The conflict of powers likely to arise under sees. 91 and 92 of
B. N. A. Act was also fully discussed by the Privy Council in the
case of Attorney-General of Ontario v. Attorney-General of Can-
ada, [1896] A. C. 348, See also Attorney -General of Manitoba v.
Manitoba License Holders' Association, [1902] A. C. 73.
In the case of the Attorney-General of Ontario v. Hamilton
Street Railway Co., [1903] A. C. 524, 7 C. C. C. 326, it was
decided by the Privy Council that the " Ontario Lord's Day Act "
is ultra vires of the Ontario Legislature, as the subject matter there-
of comes under the classification of "Criminal Law," which by
the B. N. A. Act is under the exclusive legislative authority of the
Parliament of Canada.
In delivering the judgment of the Court, the Lord Chancellor
said : " The reservation of the criminal law for the Dominion of
Canada is given in clear and intelligible words which must be con-
sidered according to their natural and ordinary signification.'*
APPOINTMENT OF MAGISTRATES. 5
And see Ex parte Green, 35 N. B. E. 137, McLaughlin v. 'Recorl-
ers' Court of Montreal, 4 Q. P. E. 304, In re Sunday Laws, 35
C. L. T. Occ. N". 77, 35 S. C. E. 581, Starlc v. Schuster, 14 Man.
E. 672, E. V. Panos, (1909) 14 C. C. C. 291. We have thus ascer-
tained that, while the Parliament of Canada may alone enact laws
relating to crime, and also may establish " additional Courts for
the better administration of the laws of Canada," yet the adminis-
tration of justice and the constitution of the Courts of criminal
jurisdiction are almost exclusively undertaken and provided for
by the Provinces.
Magistrates and Justices of the Peace.
The delegation of the administration of justice to the Pro-
vinces gives the right to the Provinces to appoint Justices of the
Peace. The right of the Crown in the Dominion to appoint Jus-
tices of the Peace and Magistrates is a prerogative right, and is
also conferred by the B. N. A. Act, and can be exercised at any
time.
See Part III. of the Code, sections 142-154, and sec. 2.
In the Northwest Territories as they now exist, and the Yukon
Territory, the power to appoint Stipendiary Magistrates is vested
in the Governor-General in Council. In the Provinces, appoint-
ments are made by the Lieutenant-Governor in Council.
Justices of the Peace are either appointed by commission, or
are such for the time being by virtue of their holding some other
office.
In some Provinces, mayors of cities and towns are declared to
be ex officio Justices of the Peace. Eeeves of municipalities are
also ex officio Justices of the Peace ; in Ontario and British Colum-
bia the Judges of the Supreme Court of Canada, the Judge of the
Exchequer Court of Canada and the Judges of the Supreme Court
of Judicature. In Manitoba, Judges of the County Court are
ex officio Justices of the Peace. Every Police and Stipendiary
Magistrate and Eecorder during his term of office is ex officio a
Justice of the Peace.
Commissioners of Police appointed by the Governor-General
in Council, Commissioners and Assistant Commissioners of E. N".
W. M. P., are vested with powers of two Justices of the Peace.
Superintendents of the force are Justices of the Peace ex officio.
Indian agents, officers appointed under the Fishery Act, returning
officers and deputy returning officers under the Dominion Election
6 APPOINTMENT OF MAGISTRATES.
Act, from their appointment till the day after the election, are
Conservators of the Peace.
The office of Justice of the Peace was first instituted by the
Statute 1 Edward III. c. 2-5, 16, A. D. 1327. It was provided
that, for the better maintaining and keeping of the peace, in every
county good and lawful men should be assigned by commission of
the King.
In England, Justices of the Peace were described as judges of
record appointed by the King to be justices within certain limits
for the conservation of the peace, and for the execution of divers
things comprehended within their commission and within divers
statutes committed to their charge. (Dalt. c. 2.)
In 4 Institute, 170, Lord Coke says: "That the whole Chris-
tian world hath not the like office as Justice of the Peace if duly
executed."
Before the institution of Justices of the Peace, there were Con-
servators of the Peace in every county, whose office (according to
their names) was to conserve the King's Peace, and to protect the
obedient and innocent subjects from force and violence.
These Conservators by the ancient and common law were by
force of the King's writ chosen by the freeholders in the County
Court out of the principal men in the county.
By the Statute of Edward III. no other power was given than
that of keeping the peace; the title of Justice was not even con-
ferred. The title and power of exercising justice came afterward.
The majority of Justices of the Peace in Canada hold their
offices by virtue of the commissions appointing them. No property
qualification is required of a Justice of the Peace who is such
ex officio. But all Justices of the Peace appointed by commission
in Ontario, Quebec and Manitoba must have a property qualifica-
tion.
In the other Provinces no property qualification is required.
By the Statute 13 Rich. II., s. 1, c. 7, and the 2 Henry Y., s. 2,
c. 1, the justices shall be made within the counties of the mo5t
sufficient knights, esquires and gentlemen of the law.
By the Statute of 1 Mary, no sheriff shall exercise the office of
a Justice of the Peace during the time that he acts as sheriff. And
the reason seems to be because he cannot act at the same time both
as judge and officer, for so he would command himself to exercise
his own precepts. (Dalt. c. 3.)
APPOINTMENT OF MAGISTRATES, 7
And if he be made a Coroner tliis, by some opinions, is a dis-
placement of his authority of a Justice of the Peace. (Dalt. c. 3.)
By 6 (& 7 Vict. c. 73, s. 33, no attorney or solicitor shall act as
a Justice of the Peace while he continues in the business or prac-
tice of an attorney or solicitor.
By 1 Edw. VI., c. 7, s. 4, if a Justice of the Peace be created a
duke, archbishop, marquis, earl, viscount, baron, bishop, knight
judge or sergeant-at-law, this taketh not away his authority of a
Justice of the Peace.
Qualification.
The first enactment in England relating to the qualifications of
Justices of the Peace as regards estate is 18 George II., c. 20, s. 1 .
The recital is as follows : " By many Acts of Parliament of late
years made the power and authority of Justices of the Peace is
greatly increased, whereby it is become of the utmost consequence
to the common weal to provide against persons of mean estate act-
ing as such. And whereas the laws now in force are not sufficient
for that purpose," It is enacted : " That from and after the 25th
day of March, 1746, no person shall be capable of being a Justice
of the Peace or of acting as such, for any county, riding or divi-
sion within that part of Great Britain called England, or the prin-
cipality of Wales, who shall not have either in law or equity to and
for his own use and benefit in possession a freehold, copyhold or
customary estate for life, or for some greater estate, &c., lying and
being in England or Wales of the clear yearly value of £100 over
and above all encumbrances,"
An oath of qualification had to be taken, and to act without
taking the oath involved a penalty of £100,
Ontario, Quebec and Manitoba have followed the English law
requiring Justices of the Peace to have property qualification and
to take the oath respecting the same.
How and by Whom Appointed.
The following is a summary of the laws of the different Pro-
vinces and Territories of Canada relating to the appointment of
Justices of the Peace and Police Magistrates, and their powers.
8 JUSTICES OF THE PEACE IN ONTAEIO.
ONTAEIO.
The Justices of the Peace Act, R. S. 0. 19U, c. '87.
Justices of the Peace are appointed by the Lieutenant-Governor
in Council under the Great Seal. The justices are appointed for
each county, city, town, provisional judicial district or provisional
county, or for any part of Ontario not forming part of a county
or of a provisional judicial district.
Except when otherwise specially provided, " all Justices of the
Peace appointed in Ontario shall be of the most suflBcient persons
dwelling in the counties, districts or places respectively, for which
they are appointed.''
They must have a property qualification by having in actual
possession to and for their own proper use and benefit an estate
in land in Ontario, such estate being of or above the value of $1,200
over and above what will satisfy all encumbrances, and all rents
and charges payable out of or affecting the same.
Each Justice of the Peace is required to take and subscribe an
oath of qualification and oath of office before entering upon his
duties, and within three months from the date of commission under
which he is appointed. These oaths must be filed with the Clerk
of the Peace for the county or district in which the justice is to
act.
The penalty for acting without taking the oath of qualification,
or acting without being qualified, is forfeiture of $50, to be re-
covered by proceedings under the Ontario Summary Convictions
Act.
The Oath of Qualification is as follows:
I, A. B,, of do swear that I truly and bona fide
have to and for my own proper use and benefit such an estate as
qualifies me to act as Justice of the Pea^^e for the County (or as
the case may be) of according to the true intent and
meaning of the Justices of the Peace Act to wit: (state the nature
of the estate and describe the land.)
So help me God.
Sworn before me, etc.
J. P.
The Oath of Office is as follows:
I, A. B., of the in the County of , do
swear that I will well and truly serve our Sovereign Lord King
JUSTICES OF THE PEACE IN ONTARIO. 9
George (or the reigning Sovereign for the time being) in the office
of Justice of the Peace, and I will do right to all manner of people
after the laws and usages of this Province without fear or favor,
affection or ill-will. So help me God.
Sworn before me, etc.
Under the statute, Justices are not required to have a legal
estate. It is sufficient if the land, though mortgaged in fee, ex-
ceeds by $1,200 the amount of the mortgage. Fraser v. McKenzie,
28 U. C. R. 255.
As all Justices of the Peace appointed in Ontario, Quebec and
Manitoba are to be "of the most sufficient persons," the object of
the qualification was to carry out this idea, namely, that Justices
should be men of worth and standing in the community.
On this subject of property qualification, see the cases of
Squier v. Wilson, 15 C. P. 284; Crandell v. Nott, 30 C. P. 63.
If a Commission of the Peace issues, and in it are included
the names of some who were appointed under a former Commission
and who had taken the necessary oath of office as a justice of the
peace, it is not necessary for these persons to again take such oaths.
All persons appointed to judicial offices in Canada are re-
quired to take the oaths of allegiance and of office before acting in
their judicial capacity, and a person temporarily appointed to be
Deputy Eecorder of Montreal is under the same obligation.
The accused having at the trial raised the point that the De-
puty Recorder had not taken the oaths, it was held that he could
not claim to be in the position of a Judge de facto, but, so far as
the prisoner was concerned, he was a mere intruder in the office.
Ex parte Eliza Mainville, 1 C. C. C. 528.
The failure of a judicial officer to take the oath of allegiance
and the oath of office, when he has acted as the holder of the office,
and his qualification is not challenged by the accused at the trial,
do3s not invalidate his judgments in criminal cases, and such
judgments are valid and binding as having been rendered by a
Judge de facto.
A Judge de facto is one who exercises the duties of a Judge
under colour of an appointment, and whose possession of the
office and exercise of its functions are acknowledged and acquiesced
in by those who appear before him and by the public; he is one who
has the reputation of being the Judge he assumes to be, and yet
is not a good Judge in point of law.
10 POLICE MAGISTRATES IN ONTARIO.
Wdetele, J., in Ex parte Thomas Curry, 1 C. C. C. 532. See
also -O'Neil v. Attorney-General, 1 C. C. C. 303 ; R. v. Gibson, 3 C.
C. C. 451.
By section 20 of the Act, all Justices of the Peace must make
quarterly returns of all fines, forfeitures and penalties or damages,
and of receipt and application of the money received. The return
must be in writing and under the hand of the justices, and shall
be filed with the Clerk of the Peace on or before the second Tues-
day in March, June, September and December in each year in
the form given in the schedule to the Act. The penalty for neglect
is $60 and full costs, sec. 31.
The Clerk of the Peace is required within two weeks of receipt
of the returns to post them up in the Court House and in his
own office for public inspection.
See also section 1133 of the Code as to quarterly returns to be
made of convictions and monies received.
By section 69 of the Act Justices of the Peace may use the
town hall of any municipality which has no Police Magistrate for
the hearing of cases brought before them, but not so as to inter-
fere with its ordinary use.
Police Magistrates in Ontario.
The Police Magistrates Act, R. S. 0. 191Jf, ch. 88.
In Ontario every city and town having more than 5,000 inhabi-
tants shall have a Police Magistrate, his salary to be paid by the
city or town. Every other town may have a Police Magistrate if
the Lieutenant-Governor in Council sees fit to make an appoint-
ment.
See also sections 5 and 6 as to appointment of Police Magis-
trates in cities and towns.
Every Police Magistrate shall ex officio be a Justice of the
Peace for the Avhole county or union of counties, or district for
which he has been appointed.
In case of illness or absence, or at the request of the Police
Magistrate, any two or more Justices of the Peace may act in his
place in any matters within the jurisdiction of the Police Magis-
trate, and they shall have in such cases all the powers which, by
any Statute of the Province, are given to Police Magistrates. This,
however, would not affect the provisions of the Criminal Code as
POLICE MAGISTRATES IN ONTARIO. 11
to the jurisdiction of Police Magistrates and Justices of the Peace.
One Justice of the Peace may act whenever by law one Justice
has jurisdiction in that behalf.
By section 34 : " In case if illness or absence from the county
or district of a Police Magistrate, any other Police Magistrate,
whether appointed for the county or district, or for a city, town or
village, or other place therein, shall have all the powers and may
perform all the duties of the Police Magistrate during such illness
or absence, and may continue and complete any proceeding begun
before him, notwithstanding that the first mentioned Police Magis-
trate may in the meantime have recovered or returned."
A Police Magistrate has the powers of two Justices of the Peace.
No Justice of the Peace shall admit to bail or discharge a
prisoner, or adjudicate upon or otherwise act until after judgment
in a case arising in a town or city where there is a Police Magis-
trate, except at the Court of General Sessions of the Peace, or in
case of illness, or absence, or at the request, of the Police Magis-
trate. Sec. 18.
County Councils may pass resolutions affirming the expediency
of the appointment of a Police Magistrate for the county or part
of county, and the Lieutenant-Covernor may make such appoint-
ment. The salary to be paid by the county.
A Police Magistrate is not required to have any property quali-
fication, but he must take his oath of office, which is practically
the same as that prescribed for Justices of the Peace. He must
file his oath of office with the Clerk of the Peace. He need not act
outside of the limits of the city, town or place for which he is
Police Magistrate unless he sees fit to do so.
Questions concerning the territorial jurisdiction of Police
Magistrates in Ontario have been the subject of judicial decision
upon several occasions. The most important cases will be found
cited in the judgment of Judge MacdougaJl in The Queen v. Mc-
Lean, 3 C. C. C. 323.
In that case it was held that a Police Magistrate, ex officio pos-
sessing the power of two Justices of the Peace, has power to
try a case arising in the county, sitting anywhere in the county,
the only restriction upon his acting in the City of Toronto being
that he could not try a case originating in the city except in the
illness, absence, or at the request, of the Police Magistrate for the
citv.
12 VEXATIOUS ACTIONS AGAINST MAGISTRATES.
Vexatious Actions against Justices.
The Public Authorities Protection Act, R. S. 0. IdlJf, ch. 89.
This is a special statute dealing with actions brought against
Justices of the Peace and Police Magistrates. These officers are
liable to be sued for acts done by them in the execution of their
duty as such Justices. First, with respect to any matter within
their jurisdiction as such Justices. In these cases it shall be
expressly alleged in the statement of claim that the act was done
maliciously and without reasonable and probable cause. Second,
for any act done by a Justice of the Peace in a matter in which
by law he has not jurisdiction, or in which he has exceeded his
jurisdiction, or for any act done under a conviction, or order, or
warrant issued by the Justice of the Peace in such matter, any
person injured may maintain an action without making any alle-
gation in his statement of claim that the act complained of was
done maliciously and without reasonable and probable cause.
If a Justice of the Peace makes a conviction or order and a
warrant of distress, or of commitment, has been granted therein
by some other Justice of the Peace bona fide and without collusion,
the action, by reason of any defect in the conviction or order, will
not lie against the Justice of the Peace who issued the warrant, but
must be brought against the Justice who made the conviction or
order. Sec. 4, s.-s. (2).
No action can be brought for anything done under a conviction
or order until the conviction or order has been quashed, either upon
appeal, or upon application to the High Court. Sec. 4, s-s. (3).
These provisions are treated at further length in the next
chapter.
By Chapter 87 of R. 8. 0. (lOUf), above referred to, all Police
Magistrates must keep records of all convictions in a book ruled in
the same manner as the form of conviction in the Act respecting
returns of convictions and fines by Justices of the Peace. These
entries are to be made forthwith upon the happening of the event
in respect of which information is to be given. Such records shall
be open for inspection. The penalty for neglect of making such
return is $60 and full costs. Sec. 31.
Certified returns of entries in the Record Book are to be made
on or before the first Tuesday of Marcb, June, September and
December of every year to the Clerk of the Peace of the county for
SECURITY FOR COSTS AXD FEES. 13
or within which he is Police Magistrate, and to the Inspector of
lesral oflSces at Toronto. Sec. 29.
Security for Costs.
Section 16 of ch. 89, R. S. 0. IQlJf, provides for security for
costs in certain actions against Justices of the Peace or Police
Magistrates.
The defendant may at any time after the service of the writ
apply to the Court, or to a Judge for security for costs.
The application is to be made on notice and affidavit stating
the nature of the action, and that the plaintiff is not possessed of
property sufficient to cover the costs of the action and that the
defendant has a good defence upon the merits or that the grounds
of action are trivial or frivolous.
Fees to be Charged by Justices of the Peace.
Sec. 3^ of R. S. 0. 191Jt, ch. 87. In cases not provided for by
the Criminal Code and the Ontario Summary Convictions Act, a
Police Magistrate not receiving a salary and a Justice of the Peace
shall be entitled to receive from the County, or, in the case of a
district, from the Province, the sum of $2 for all services of every
kind connected with the case, when the time occupied does not
exceed two hours, and 50 cents for each additional hour.
Sec. 35. The penalty for charging excessive fees is forfeiture
of $60, together with full costs of suit.
As to the fees to be taken by Justices under Part XV. of the
Code, vide sec. 770 of the Code, and schedule thereto.
QUEBEC.
Justices of the Peace.
By Articles 3333 to 3381, Revised Statutes of Quebec {1909),
which relate to Justices of the Peace, it is provided that Justices
of the Peace may be appointed by commission under the Great
Seal. AH Justices of the Peace appointed in the several districts
shall be taken from the most fit and proper persons dwelling in
the said districts respectively.
14 JUSTICES OF THE PEACE IN QUEBEC.
The Lieutenant-Governor may by special Commission appoint
Justices of the Peace, whose jurisdiction shall extend outside any
district or county and over remote parts of the Province. It shail
not be necessary for any such Justice of the Peace to reside in or
possess any property qualification in that part of the Province for
which he is appointed.
All Justices of the Peace shall keep registers with faithful
minutes or memo, at length of every conviction at any time made
by them. When two Justices of the Peace sit the register shall be
kept by the senior Justice of the Peace and be subscribed by the
junior Justice present during the proceedings which have been had.
In Quebec, Montreal and Three Eivers, these registers are to
be kept by Clerks of the Peace.
All Justices of the Peace must make quarterly returns ^o the
Clerk of the Peace.
A Justice of the Peace may appoint one or more constables, if
need be, to execute the orders of such Justice of the Peace, who may
administer the requisite oath, which oath shall be registered in the
register of such Justice of the Peace.
Articles 3384 to 3388 provide for the protection of Justices of
the Peace, Magistrates and other officers in cases of actions against
them for things done in the performance of their public duties.
The qualification and oath of qualification are similar to those
required in Ontario, already referred to at length. This oath and
the oath of office must be filed with the Clerk of the Peace for the
district.
The penalty for justices acting without having taken the oath
and not being qualified is $100 with full costs, to be recovered by
suit.
When not otherwise specially provided by law, no advocate shall
be a Justice of the Peace during the time he continues his practice.
Whenever any vessel belonging to His Majesty's navy is in the
Gulf or Eiver St. Lawrence, every officer attached or belonging to
such vessel and holding commission of Vice- Admiral, Post-Captain,
Captain or Commander in His Majesty's Navy, and any Lieutenant
having command of such vessel, shall be ex officio a Justice of the
Peace for the Districts of Gaspe, Saguenay and Eimouski, while
such vessels remain within the limits of the Province. They are
exempt from residence and property qualification, and it is not
necessary for them to take the oath of office.
POLICE MAGISTRATES IN QUEBEC. 15
Police Magistrates.
By Article 3282, the Lieutenant-Governor may from time to
time appoint, by commission under the Great Seal, fit and proper
persons to be and act as Police Magistrates within any one or more
districts or throughout the Province.
It is not necessary for any one so appointed to have any pro-
perty qualification, or to be resident in any district for which he
may be appointed. Art. 3383.
Every Police Magistrate shall keep minutes of every proceeding
had by and before him, and shall keep such accounts, make such
returns and collect such information within his jurisdiction, and
perform such other duties, as the Lieutenant-Governor may from
time to time prescribe and require. All moneys arising from
penalties, forfeitures and fines imposed or collected by Police
Magistrates are to be accounted for in such manner as the Lieuten-
ant-Governor may direct. Art. 3285, 3286.
Police Magistrates may appoint constables, if necessary, to carry
out their orders, and the Police Magistrate may at his pleasure
remove any such constable. Every police constable so appointed
shall obey the lawful commands of the Magistrate and be subject
to his government. Art. 3287.
Police Magistrates must take oath of office and file same with
the Clerk of the Peace for the district.
District Magistrates. Articles 3291-3313.
The Lieutenant-Governor may appoint by Commission under
the Great Seal one or more District Magistrates, who shall be
advocates of at least five years' standing, who shall, upon their
appointment, cease practising. The Lieutenant-Governor may also-
establish Magistrates' Courts for counties, cities and towns.
These Magistrates have the power of two or more Justices of
the Peace and of the Judge of Sessions. They have both civil and
criminal jurisdiction.
Stipendiary Magistrates. Articles 3259-3277.
The Lieutenant-Governor of Quebec may appoint Stipendiary
IV^agistrates, called Judges of the Sessions of the Peace, for the
Cities of Quebec and Montreal, with jurisdiction over the whole
Province to perform the duties of Judges of the Sessions, and such
16 JUSTICES OF THE PEACE IN NOVA SCOTIA.
duties as may be from time to time imposed upon them by any law
in force in the Province.
Recorders.
All powers and jurisdiction conferred upon the Judges of the
Sessions of the Peace for the Cities of Quebec and Montreal, or
upon two or more Justices of the Peax;e, by the provisions of the
following section, were vested in and may be exercised by the
Recorders and by the Recorders' Courts of and for the said cities,
and by those who by law act in the absence on account of sickness
or otherwise of the said Recorders, or when there is no Recorder,
and discharge the duties of that office.
By section 583 of the Code, Courts of General or Quarter
Sessions of the Peace in the cities of Montreal and Quebec, when
presided over by a Recorder, or Judge of the Sessions of the Peace,
have power to try any indictable offence, except as mentioned in
section 583.
See section 588 of the Code as to trial of offences committed in
Gaspe.
• NOVA SCOTIA.
Justices of the Peace.
Under the provisions of Chapter 38, R. 8. N. 8. (1900), the
Governor (sic) in Council may from time to time by Commission
under the Great Seal of the Province, or the Seal-at-arms, appoint
such and so many Justices of the Peace in and for the several and
respective counties of the Province as he deems expedient and
proper.
The holder of a liquor license is not eligible for appointment.
No property qualification is required. The oath of office in Form
"A," schedule to the Act, may be sworn before the Warden, or
Clerk of the municipal district in which the person resides.
The Clerks of the municipal districts shall keep a record of each
person sworn, shewing the date sworn. A copy of the record shall
be evidence. The Governor-in-Council may remove any person
from office, and the notice of such removal must be published in
the Royal Gazette for the Province.
STIPENDIAEY MAGISTRATES IN NOVA SCOTIA. 17
Chapter 39 removes certain disqualifications by reason of being
a ratepayer, etc.
Chapter 40 provides for the protection of Justices of the Peace
and Stipendiary Magistrates, and is similar to the Ontario Act.
Chapter 42. Constables' Protection Act.
Stipendiary Magistrates.
Chapter S3, R. S. N. S. (1900). Stipendiary Magistrates shall
be appointed by the Governor in Council, one for every incorpor-
ated town, who shall hold office during good behaviour. He shall
be paid a salary by the town council not less than $150 per annum.
The Governor in Council may also appoint Stipendiary: Magistrates
for each county, who shall hold oflfice during pleasure. These
Miagistrates shall be paid the fees of their office, but the council
may at any time by resolution grant an annual salary and receive
the fees to its own use. Such Stipendiary shall have jurisdiction
throughout the whole county for which he is appointed, and such
larger area as is prescribed by any special law.
A Stipendiary shall have the power of a Police Magistrate and
of two Justices of the Peace. He shall, by virtue of his office, be a
J. P. for the whole of the county in which he presides. In case of
the illness or absence of a Stipendiary, or at his request, two
Justices of the Peace may act. He must take and subscribe the
oath of office and file the same. A town solicitor is not disqualified
from acting as a Stipendiary Magistrate.
See Johnston v. McDougdll, 17 C. C. C. 58, 398, as to the juris-
diction of Stipendiary Magistrates in Nova Scotia after changes in
the statutes under which they had been appointed.
Under Chapter 41, R- S. N. S., a Stipendiary Magistrate has
power to swear in constables to hold office not more than thirty
days.
Under the same Act a municipal council may, at the annual
meeting appoint as many persons as it sees fit to be constables, and
may likewise dismiss them.
The council may also appoint a Chief Constable for one year.
Three Justices of the Peace may appoint special constables in the
event of a riot or unlawful assembly. The Governor in Council
may appoint Provincial Constables.
c.c.p. — 2
18 JUSTICES OF THE PEACE IN NEW BBUNSWICK.
NEW BEIJNSWICK.
By Chapter 58, Con. Stat. N. B. {1903), it shall be lawful for
the Lieutenant-Govemor, by and with the advice of the Executive
Council, at any time or times to appoint under the Great Seal of
the Province such and so many Justices of the Peace in and for
the several and respective counties of the Province as may be
deemed expedient and proper.
Justices of the Peace must take the oath of office before the
Clerk of the Peace for the county, or city for which they shall be
appointed. A record of such swearing is to be kept by the Clerk.
By Chapter 119 of the Con. Stat, the Lieutenant-Governor in
Council may appoint Stipendiary, or Police Magistrates within any
county, and such shall be a Court having and exercising all crim-
inal, or quasi criminal, jurisdiction conferred upon Stipendiary
or Police Magistrates by law.
As to the jurisdiction of Parish Court Commissioners in New
Brunswick, see Ex parte Flanagan, 5 C. C. C. 82, and Ex parte
Monahan, 17 C. C. C. 53.
The Lieutenant-Governor may fix the town, or parish, where the
Court is to be held. All Stipendiary or Police Magistrates shall be
ex officio Justices of the Peaee for the county over which they have
jurisdiction. Eaeh Stipendiary or Police Magistrate is created,
declared and constituted a Court, and to have powers conferred by
any Act of Parliament of Canada. They are to have jurisdiction
over complaints, etc., arising within the county under Dominion or
Provincial Summary Convictions Acts, and all powers of Justices
of the Peace in any matter or proceeding, also to have alone all
powers of two Justices of the Peace.
These Magistrates are granted civil jurisdiction to the same
extent and in the same manner as the Parish Court Commissioners
have by the provisions of chap. 120 of the Consolidated Statutes.
They must take the prescribed oath of office before the Clerk of the
Peace for the County, and file the same in his office.
JUSTICES IN PRINCE EDWARD ISLAND. 19
PEINCE EDWARD ISLAND.
By the Statute 50 Victoria, Chap. 2 {1881), Rev. Stat. 1891,
Chaps. 93 and IJfS, the lieutenant-Governor in Council may
appoint, under the Great Seal, such and so many Justices of the
Peace in and for the several and respective counties of the Province
as may be deemed expedient and proper.
The oath of office must be taken before the Chief Justice of the
Supreme Court, or any Assistant Judge, or before the County
Court Judge of the county in which the Justice of the Peace resides.
Upon being sworn, the Judge shall deliver to such person being
sworn a certificate in writing 'under his hand that such person did
duly take the oath before him.
Before entering upon his duties the Justice of the Peace must
file this certificate in the office of the Provincial Secretary, who is
to keep a record of the same.
The Lieutenant-Governor in Council may remove any Justice
of the Peace, and notice of such removal must be given in the
Koyal Gazette.
No sheriff or deputy shall act as a Justice of the Peace during
his term of office. (1888), 51 Vic, cap. 1, P. E. I.
BRITISH COLLMBIA.
The appointment of Magistrates and Justices of the Peace i.s
regulated by the " Magistrates' Act," chap. lJf9, Rev. Statutes, 1911.
The Lieutenant-Governor in Council may appoint by Commis-
sion, under the Great Seal of the Province, fit and proper persons
to be Stipendiary Magistrates for any one or more counties or
electoral districts in the Province, or for any less extensive juris-
diction, and may bji order in Council cancel and revoke the Com-
mission, or appointment.
The Lieutenant-Governor, whenever he shall think fit, may issue
either a general commission of the peace, or supplementary commis-
sions of the peace, appointing by letters patent under the Great
Seal of the Province Justices of the Peace in and for any county or
electoral district or in and for any less extensive jurisdiction. Such
appointments may be cancelled by order in Council.
20 JUSTICES IN BRITISH COLUMBIA.
Every Judge of the Supreme Court of Canada, of the Exchequer
Court of Canada, of the Court of Appeal , and of the Supreme
Court of British Columbia and any of the County Courts shall be
ex officio a Justice of the Peace for the Province. All disqualifica-
tions by reason of being a ratepayer are removed.
Oaths of oflBce and allegiance are set forth in the first schedule
to the Act.
These oaths are to be taken before a Justice of the Peace, and,
when taken, the same are to be transmitted to the Provincial
Secretary, who shall file the same among the records of his ofifice.
These oaths must be taken and transmitted within sixty days from
the appointment.
Returns are to be made quarterly, on or before the second Tues-
day in the months of March, June, September and December in
each year, of all convictions, and of the receipt and application of
moneys received. The penalty for neglect in making these returns
is $200 and full costs of suit.
All fines, save those specially appropriated to the Justice of the
Peace, or to any municipality, shall be paid to the Provincial
Treasurer monthly.
Oath of Office.
I, , swear that as a Stipendiary Magistrate, or Justice
of the Peace, for the County or Electoral District of ,
in the Province of British Columbia, in all articles in the King's
Commission to me directed, I will do equal right to the poor and to
the rich after my cunning, wit and power, and after the laws and
customs of the Realm and Statutes thereof made. And that I
will take nothing for my office of Stipendiary Magistrate, or Justice
of the Peace, to be done, but of the King and fees accustomed, and
costs limited by statute. So help me God.
Oath of Allegiance.
I, , do solemnly promise and swear that I will be
faithful, and bear true allegiance to His Majesty, King George
the Fifth, his heirs and successors. So help me God.
Chapter 150 of the Rev. Stat. B. C. 1911, provides for the pro-
tection of Magistrates. The provisions of this Act are taken from
the Imperial Statute 11 & 12 Vict., chap. ^4.
JUSTICES AND MAGISTRATES IN MANITOBA. 21
MANITOBA.
R. 8. Man. Chapter 121 {1913)," The Manitoba Magistrates' Act."
The Lieutenant-Governor in Council may, whenever he shall
think the public interest requires him to do so, appoint one or more
Police Magistrates, and may define the territorial limits of their
separate and respective jurisdictions, and he may at any time re-
move, suspend or dispense with any of such officers, and re-appoint
other, or others, in his or their stead, at pleasure.
Every Police Magistrate shall have, and exercise within the
limits of his territorial jurisdiction, all the powers and authority
vested in a Police Magistrate, a Stipendiary Magistrate, or two or
more Justices of the Peace sitting and acting together under any
law or statute in force in Manitoba.
It shall be lawful for the Lieutenant-Governor in Council,
whenever he shall think fit, to appoint under the Great Seal one or
more Justices of the Peace in and for any city, town or other muni-
cipality in the Province of Manitoba, or for the whole Province,
Whenever a new Commission shall be issued, all and such like
former commissions shall become absolutely revoked and cancelled,
but nothing shall prevent the re-appointment of any Justice of the
Peace named in such former Commission if the Lieutenant-Gover-
nor shall think fit. All justices appointed shall be chosen from
amongst the most competent persons dwelling in the said portions
respectively.
No barrister, attorney or solicitor shall be appointed, or act, as
a Justice of the Peace during the time he continues his practice as
such. Sheriffs and Coroners shall not be competent or qualified to
be Justices of the Peace, or act as such during the time they exer-
cise their offices. Provided the Lieutenant-Governor in Council
may, under special circumstances and in view of public convenience,
confer under the Great Seal upon one and the same person the
offices of Coroner and Justice of the Peace.
A Police Magistrate does not require any property qualification.
A Justice of the Peace must be the owner in fee simple for his
own use of land in the Province of the value of $500 over and
above all incumbrances affecting the same.
The oath of qualification is as follows:
I, A. B., of , in the Province of Manitoba, do
swear that I truly and bona fide have to and for my own proper use
22 JUSTICES AND ATAOISTRATES IN MANITOBA.
and benefit an estate in fee simple in lands situate in the Province
of Manitoba of such a value as doth qualify me to act as a Justice
of the Peace according to the true intent and meaning of the
statute in that behalf, and that such lands are the following
(parish or township, range, etc.) So help me God.
A certificate of such oath being taken and subscribed as afore-
said shall be forthwith deposited by the Justice of the Peace who
has taken the same in the office of the Provincial Secretary.
Xo person shall be published in the Manitoba Gazette as a
Justice of the Peace until and after the said person has strictly and
fully complied with the requirements of the two last preceding
sections of the Act. Sec. 11.
On demand, the Provincial Secretary shall deliver an attested
copy of the oath, in writing, to any person paying twenty-five cents
for the same. Such copy when produced in the trial of any issue
shall have the same force and effect as the original would have if
produced.
The penalty for acting without taking and subscribing the oath,
or without being qualified, shall for every offence be $100 with full
costs.
Then follow provisions as to actions being brought against Jus-
tices of the Peace not being properly qualified.
All Police Magistrates and Justices of the Peace are required
to make semi-annual returns before the 30th June and December
in each and every year, in duplicate, one to be sent to the Attorney-
General of the Province and the other to the Provincial Treasurer.
Such returns must shew the convictions and orders made, the dam-
ages or penalt}- and costs imposed, the amounts received for fines,
forfeitures, penalties, or damages, or costs, and the receipt and
application by them of moneys received from any person so con-
victed. Sec. 22.
In case of convictions, or other dispositions before two or
more Justices of the Peace, all the Justices of the Peace present
and joining therein shall forthwith make a return in the manner
aforesaid. Sec. 23.
Befusal and neglect to make returns as required by the statute
or within thirty days from the time required by written noidoe
from the Provincial Treasurer, and after the expiry of thirty days
from such notice, will mean the publication of such default in
the Manitoba Gazette during two successive issiies, giving thirty
days more for making such return, and, default still continuing.
JUSTICES AND MAGISTRATES IN MANITOBA. 23
the name of the Magistrate, or Justice of the Peace, so in default
will be erased from the Commission, and his appointment will be
cancelled.
Semi-annual returns must also be made shewing the disposition
of all cases, matters and proceedings had or taken before him upon
any trial, case or hearing, where no conviction has taken place, or
where matters have been otherwise settled or disposed of. In de-
fault of such return his name will be struck off the Commission of
the Peace.
The return shall be made in form "A" to the Act. Default
will also subject Magistrates and Justices of the Peace to a penalty
of $80 with full costs of suit, to be recovered by any person who
sues for the same.
Protection is afforded to Magistrates and Justices of thfe Peace
as provided in the Act.
E. S. M. 1913, ch. 189. The Manitoba Summary Convictions
Act.
R. S. M. 1913, Chapter 189, The Manitoba Summary Convictions
Act.
Recovery of Fines and Penalties.
Where a fine or penalty is imposed for any contravention of an
Act of the Legislature or a by-law of a municipality passed under
the authority of an Act of the Legislature, if no special mode
of procedure is prescribed such fine or penalty may be recovered
and enforced in a summary way before one justice of the peace.
Sec. 2.
Application of Criminal Code.
Sections 705 to 770, inclusive, of the Act of the Parliament
of Canada known as " The Criminal Code," being chapter 146
of the Ecvised Statutes of Canada, 1906, and any enactments which
may repeal or be substituted for the same, and the Acts already
passed or which may hereafter be passed amending any of the
said sections or enactments, shall apply to all prosecutions and
proceedings before Police Magistrates or Justices of the Peace
under the statutes of the Province or under municipal by-laws
passed under the authority of any of such statutes, so far as the
same are consistent therewith. Sec. 4.
24 JUSTICES OF THE PEACE IN SASKATCHEWAN.
Except where otherwise specially provided, all appeals from
convictions or orders of Police Magistrates or Justices of the Peace
shall be brought under the provisions of the said Acts of the Par-
liament of Canada. Sec. 6.
SASKATCHEWAN.
Justices of the Peace, R. S. SasJc. 1909, chapter 62.
The Lieutenant-Governor may appoint under the Great Seal
Justices of the Peace for the Province.
No one who is not a British subject, either by birth or naturali-
zation, shall be appointed. No advocate who is practising his pro-
fession can be appointed a Justice of the Peace.
The usual oath of office is prescribed.
Eeturn of all fines, etc., payable to the Province shall forthwith
after receipt of same be transmitted to -the Attorney-General, with
a statement in form " A,^' in the schedule to the Act.
And in the months of January and July in each year, and
before the 15th day thereof. Justices of the Peace shall make returns
in writing signed by them to the Attorney-General, shewing the
result, disposition of or action taken upon or in regard to any such
matter. These returns must be made in form " B," in the schedule
to the Act. Default in making these returns subjects the Justice,
after certain formalities have been complied with, to having his
name published in the Gazette. And, if he still neglects after thirty
days from the publication of his default in the Gazette, then his
name will be erased from the Commission of the Peace.
A defaulting Justice of the Peace is also liable to a penalty of
$100, with full costs of suit.
Police Magistrates, R. 8. Saslc., 1909, chapter 61.
Byi this Act, the Lieutenant-Governor may appoint a Police
Magistrate in and for every city and incorporated town. These
Magistrates are paid by the council, out of the revenue of the city
or town, such annual salary as may be agreed upon between the
municipality and the Magistrate. If a city has paid a Police
Magistrate $1,000 per annum, the Provincial Treasurer may recoup
POLICE MAGISTRATES IN SASKATCHEWAN. 85
the city to the extent of $500 ; or, if a town has paid $600 per
annum, the Provincial Treasurer may pay to the town council $300.
No person shall be appointed a Police Miagistrate unless he is ;i
member of the bar of the Supreme Court of Saskatchewan.
Every Police Magistrate shall have the power of two Justices of
the Peace, and perform all the duties of his office under the
Criminal Code. The jurisdiction of a Police Magistrate is confined
to the city or town for which he is appointed, except in the cases
provided for in sections 21 and 22 of the Act.
Police Magistrates and their clerks, or partners, shall not act as
agent, solicitor or barrister in any cause, matter, prosecution or
proceeding of a criminal nature, or act in any matter which by law
may be tried or investigated by a Police Magistrate, or Justice of
the Peace, within his judicial district.
No qualification as to property is required, but each Police
Magistrate must take the oath of oflBce prescribed ; these oaths must
be transmitted to the Attorney-General.
All provisions of Part XV. and Part XXII. of the Criminal
Code and amending Acts shall apply to all proceedings before
Police Magistrates under, or by virtue of, any law or under muni-
cipal by-laws, and to appeals from convictions or orders.
Police Magistrates must keep records in a book to be provided
by the Council, to be called " The Police Office Eecord Book," ruled
in the same manner as the form of return of convictions set out in
the schedule to the Act. A Police Magistrate shall from time to
time enter in the said book the information required to be given in
the form of said returns. Entries are to be made forthwith and, in
case a fine or penalty imposed is not collected within three months
after the imposition thereof, the cause for the same not being col-
lected shall be written in the column of remarks. This record
book shall be open for inspection.
The penalty for not making proper entry within the month of
the conviction is $100 with full costs, to be recovered by the Attor-
ney-General by suit in the Supreme Court.
All fines and moneys received by Police Magistrates shall be
forthwith transmitted to the Attorney-General in the form State-
ment A.
26 JUSTICES AND MAGISTRATES IN ALBEETA.
ALBERTA.
6 Edward VII. (1906), Chapter 13, and amendments in 1907, ch.
5, sec. 9; in 1908, ch. 20, sec. 10, and in 1909, ch. ^, sec. 8.
The Lieutenant-Governor in Council may appoint Police Magis-
trates in the Province, and they shall have all the powers now, or
hereafter, vested in two Justices of the Peace under any law in
Canada, and shall exercise jurisdiction in and for such part of the
Province as is defined by Order in Council appointing them, or by
any Order in Council amending the same.
All Police Magistrates and Justices of the Peace shall hold office
during pleasure of the Lieutenant-Governor in Council, and their
appointments may be revoked at any time.
The Lieutenant-Governor may appoint Justices of the Peace
for the Province who shall have jurisdiction as such throughout the
same.
No person who is not a British subject by birth, or naturaliza-
tion, shall be appointed a Justice of the Peace.
When not otherwise specially provided for by law, no advocate
shall be appointed, or act, as a Justice of the Peace during tho
time he continues to practice as such.
This shall not apply to any advocate appointed as a Police
Magistrate.
Every PbUce Magistrate and Justice of the Peace, before he is
gazetted as such and takes upon himself to act as such, shall take
and subscribe the oath of allegiance and oath of oflBce.
Oath of Office.
1, , of the in the District of (as
the case may be), do swear that I mil well and truly serve our
Sovereign Lord, King George the Fifth, in the office of Police
Magistrate (or Justice of the Peace), and that I will do right to
all manner of people after the laws and usages of this Province
without fear or favor, affection or ill-will. So help me God.
This oath is to be forthwith, after the same is taken, trans-
mitted or delivered to the Clerk of the Executive Council, and shall
be filed in his office.
All the provisions of Part LVIII. (now XY.) of the Criminal
Code shall apply to all proceedings before Police Magistrates and
MAGISTRATES IN THE NOETH-WEST TERRITORIES. 27
Justices of the Peace under or by virtue of any law in force in the
Province, or municipal by-laws and ta appeals from convictions or
orders made therein.
Returns of fines and penalties are to be transmitted to the
Attorney-General with statement as in form " A " in the schedule
to the Act.
Before the 15th day of January and July in each year every
Police Magistrate and Justice of the Peace shall make a return in
writing signed by him, to the Attorney-General, shewing the result
disposition of, or action taken upon, or in regard to any matter
of any nature whatsoever which is concerned, tried, heard, revised
or adjudged upon by him. This return is to be in Form " B " in
the schedule to the Act.
There is the usual provision to enforce these returns, the same
as in Saskatchewan.
NORTH-WEST TERRITORIES.
Chapter 62, R. 8. Canada, 1906.
" Territories " means the Northwest Territories, " which com-
prise the Territories formerly known as Rupert's Land and the
Northwestern Territory, except such portions thereof as form the
provinces of Manitoba, Saskatchewan and Alberta, and the Yukon
Territory, together with all British territories and possessions in
North America, and all islands adjacent thereto not included within
any Province, except the Colony of Newfoundland and its depen-
dencies."
The Governor-General in Council may appoint such number of
persons as Stipendiary Magistrates from time to time as may be
deemed expedient.
Every Stipendiary Magistrate shall have and may exercise the
powers, authorities and functions which are vested in a Judge of
the Supreme Court by the Northwest Territories Act and amend-
ments thereto on the 31st day of August, 1905.
Stipendiary Magistrates must take the following oath:
I, , do solemnly and sincerely promise and swear that
I will duly and faithfully, and to the best of my skill and know-
ledge, execute the powers and trusts reposed in me as a Stipendiary
Magistj'ate of the Northwest Territories. So help me God.
28 MAGISTRATES IN THE N.-W. AND YUKON TERRITORIES.
Such oath may be taken before the Commissioner for the North-
west Territory, or before a Stipendiary Magistrate.
The Cbmmissioner of the N. W. T. may, subject to any orders
made in that behalf from time to time by the Governor-General in
Council, issue orders to the Eoyal Northwest Mounted Police in
aid of the administration of civil and criminal justice, and for the
general peace, order and good government of the Territories.
The procedure in criminal cases shall, subject to any Act of the
Parliament of Canada, conform as nearly as may be to the proce-
dure existing in like matters in England on the 15th dayi of July,
1870.
No grand jury shall be summoned or sit in the Territories.
A Stipendiary Magistrate shall have and exercise the powers of
a Justice of the Peace, or of any two Justices of the Peace, under
any laws or ordinances in force in the Territories.
Provision is made for summary trials of certain specified
offences by Stipendiary Magistrates.
By Chapter 32, 6-7 Edward VlV. (1907), the Northwest Terri-
tories Act was amended by providing that the Commissioner of the
Royal Northwest Mounted Police, while in the Territories, shall
have all the jurisdiction, powers and authority of a Stipendiary
Magistrate appointed under section 3^ of the said Act. While
in the Northwest Territories the Commissioner, every member of
the Council appointed under section 6 of the said Act, every Sti-
pendiary (Magistrate appointed under section 32 thereof, and
every commissioned officer of the Eoyal Northwest Mouaited Police,
shall ex officio have, possess and exercise all the jurisdiction, powers
and authority of a Justice of the Peace, and of two Justices of the
Peace, under any laws or ordinances in force in the Territories:
and the Governor in Council may by Commission appoint such
other persons Justices of the Peace having each the jurisdiction,
powers and authority of two Justices of the Peace within the Ter-
ritories, as is deemed expedient.
YUKON TERRITOEY.
The YuJcon Act, Chapter 63, R. 8. C. 1906.
Sec. 105. — ^While in the Territory, the Commissioner, each
member of the Council, every Judge of the Court and every com-
missioned officer of the Royal Northwest Mounted Police shall
MAGISTRATES IN YUKON TERRITORY. 29
ex officio have, possess and exercise all the powers of a Justice of
the Peace, or of two Justices of the Peace, under any laws or ordin-
ances, civil or criminal, in force in the Territory ; and the Governor
in Council may by Commission appoint such other persons Jus-
tices of the Peace or Police Commissioners, having each the powers
of two Justices of the Peace within the Territory, as may be
deemed desirable.
Sec. 106. — All persons possessing the powers of two Justice
of the Peace in the Territory shall also be Coroners in and for the
Territory.
Sec. 89. The Governor in Council may appoint Police Magis-
trates for Dawson and White Horse in the Territory, who shall
reside at those places respectively, and shall ordinarily exercise
their functions there, but who also shall have jurisdiction in such
portions of the Territory as are defined in their Commissions.
Such Police Magistrates shall hold office during pleasure, and shall
be debarred from practising professionally while holding office.
Such Magistrates must be advocates, barristers or solicitors in
one of the Provinces of Canada of not less than three years.
They are ex officio Ju,stices of the Peace within the territorial
limits of their jurisdiction, with authority and jurisdiction of two
Justices of the Peace and Magistrates for the purposes of Part
XVI. of the Criminal Code.
Each of the Judges of the Territorial Court has the criminal
jurisdiction of a Police Magistrate.
Offences Committed in Unorganized Territory.
Section 586 of the Code (as amended 1907).
All offences committed in any part of Canada not in a Pro-
vince duly constituted as such, and not in the Yukon Territory,
may be inquired of and tried within any district, county or place
in any Province so constituted, or in the Yukon Territory, as may
be most convenient. (2) Such offences shall be within the juris-
diction of any Cburt having jurisdiction over offences of the like
nature committed within the limits of such district, county or
place. (3) Such Court shall proceed therein to trial, judgment
S9 THE ROYAL NORTHWEST MOUNTED POUCB.
and execution or other punishment for any such offence in the same
manner as if such offence had been committed within the district,
county or place where the trial is had.
Sec. 587. Such Provincial and Yukon Courts shall have the
same powers as they have with reference to offences within their
ordinary jurisdiction.
The Eoyal ^^'orthwbst Mounted Police.
Chapter 91, R. S. C. 1906:-
Sec. 12. The Commissioner and Assistant Commi^ioners have
the powers of two Justices of the Peace under this Act, or any Act
in force in the Provinces of Saskatchewan and Alberta, and the
Northwest Territories and Yukon Territory.
The Superintendent and such other ofl&cers as the Governor in
Council approves shall be ex officio Justices of the Peace.
Every constable of the force shall be a constable in and for the
two Provinces and the Northwest Territories and Yukon Territory
for carrying out any laws or ordinances in force therein.
Sec. 13. The Commissioner and other oflBcers are empowered
to exercise in any Province of Canada adjacent to the said Pro-
vinces of Saskatchewan and Alberta, or to the Northwest Territor-
ies or Yukon Territory, and every constable is empowered to exer-
cise in every Province of Canada, for the purpose of carrying
out the criminal law and other laws of Canada, like powers and
duties as are in the last preceding section assigned to him with
respect to the said two Provinces and the said Northwest and
Yukon Territories.
While so exercising powers or performing duties outside of
the two Provinces and Northwest and Yukon Territories, a mem-
ber of the force shall be subject to the Eoyal Northwest Mounted
Police Act.
Every member of the force must take the oath of allegiance
and the prescribed oath of office.
The " Keewatin Act " has been repealed, and the territory
heretofore known as " Keewatin " is now included within the
Northwest Territories, and criminal and civil matters therein are
governed by Chapter 62, E. S. C. 1906.
oath of allegiance. 31
Oath of Allegiance.
Chapter 78, R. 8. C. 1906, sec. 2.
Every person in Canada who, either of his own accord, or in
compliance with any} lawful requirement made of him, or in
obedience to the directions of any Act or law in force in Canada,
save and except the British North America Act, 1867, desires to
take an oath of allegiance, shall have administered to him and take
the oath in the following form and no other:
1, A. B., do solemnly promise and swear that I will be faithful
and bear true allegiance to His Majesty, King George V. (or
reigning Sovereign for the time being) as lawful Sovereign of the
United Kingdom of Great Britain and Ireland, of the British
possessions beyond the seas, and of this Dominion of Canada,
dependent on and belonging to the said Kingdom, and that I will
defend him to the utmost of my power against all traitorous con-
spiracies or attempts whatsoever, which shall be made against His
person, Crown and dignity, and that I will do my utmost en-
deavours to disclose and make known to His Majesty, His heirs or
successors, all treasons, or traitorous conspiracies and attempts
which I shall know to be against Him or any of them, and all this
I do swear without any equivocation, mental evasion or secret
reservation. So help me God.
32 CRIMINAL CODE AND PEOCEDUEE.
CHAPTER II.
The Criminal Code and Procedure Thereunder.
The Criminal Code of 1892, and as amended, was revised in
1906, and is found in the Revised Statutes of Canada, chapter 146.
By section 1 it is provided that the Act may be cited as the " Crim-
inal Code." This Eevised Code has been amended in 1907, chs. 7,
8, 9, 45, in 1908, ch. 18, in 1909 by the Criminal Code Amendment
Act, 1909, ch. 9, in 1910 by chs. 10, 11, 12 and 13, in 1912, by
chs. 18, 19, in 1913 by ch. 13 and in 1914 by ch. 24.
The Revised Code is divided into XXY. parts, and contains
1,152 sections.
PAET I. deals with Preliminary matters, as follows : Interpre-
tation, sees. 1-7; Application of the Code, sees. 8-15; Matters of
justification or excuse, sees. 16-68; Parties to offences, sees. 69-72.
PART II. Offences against Public Order, Internal and Ex-
ternal. Sees. 73-141.
PART III. — Preservation of the Peace near Public Works, sees.
142-154.
PART IV. — Offences against the Administration of Law and
Justice, sees. 155-196.
PART V. — Offences against Religion, Morals and Public Con-
venience, sees. 197 to 239.
PART VI. — Offences against the Person and Reputation, sees.
240 to 334.
PART VII. — Offences against Rights of Property and Rights
arising out of Contracts and Offences connected with Trade, sees.
335 to 508.
PART VIII.— Wilful and Forbidden Acts in Respect of Cer-
tain Property, sees. 509 to 545.
PART IX. — Offences Relating to Bank Notes, Coin and Coun-
terfeit Money, sees. 546 to 569.
PART X. — ^Attempts, Conspiracies, Accessories, sees. 570-575.
CRIMINAL CODE. 33
PART XI.— Jurisdiction.
Eules of Court, sec. 576.
General Jurisdiction, sees. 577-578.
Indictable Offences, sees. 579-583.
Special Jurisdiction, sees. 584-588.
PAET XII. — Special Procedure and Powers, sees. 589-645.
PART XIII. — Compelling Appearance of Accused before Jus-
tices, sees. 646-667.
PAET XIV. — Procedure on Appearance of Accused, sees. 668-
704.
PART XV.— Summary Convictions, sees. 705-770.
PART XVI. — Summary Trial of Indictable Offences, sees.
771-799.
PART XVII.— Trial of Juvenile Offenders for Certain Indict-
able Offences, sees. 800-821.
PART XVIII.— Speedy Trials of Indictable Offences, sees.
822-842.
PART XIX.— Procedure by Indictment, sees. 843 to 1025.
PART XX.— Punishment, Fines, etc., sees. 1026 to 1085.
PART XXI. — Render by Sureties and Recognizances, sees.
1086-1119.
PART XXII. — Extraordinary Remedies: Habeas Corpus, Cer-
tiorari, etc., sees. 1120-1132.
PART XXIII.— Returns, sees. 1133-1139.
PART XXIV.— Limitation of Actions, sees. 1140-1151.
PART XXV.— Sec. 1152 and Forms Nos. 1-76.
It will not be necessary, for the purposes of this work, to deal
specifically with any of the Parts of the Code except those that
relate to, or bear upon, procedure before Justices of the Peace ami
Police Magistrates.
c.c.p. — 3
34 CRIMINAL CODE, PAST I.
Incidentally of course, matters governed by other Parts of the
Code will be referred to. We will, however, deal principally with
Parts XI. to XVI.
Parts II. to X. concern crimes and offences, defining their
nature and providing for their punishment.
The reader is referred to the annotated works on the Criminal
Code of Mr. Orankshaw, Mr, Tremeear and Mr. Lear for further
elucidation upon those and other Parts of the Code.
There are, however, several sections of the Code which have a
general application to criminal law, which it might be well to
notice and consider.
PART I.
General.
Application of this Act.
8. Nothing in this Act shall affect any of the laws relating to the
government of His Majesty's land and naval forces.
9. Except in so far as they are inconsistent with the Northwest Ter-
ritories Act and amendments thereto, as the same existed immediately
before the first day of September, one thousand nine hundred and five,
the provisions of this Act extend to and are in force in the provinces of
Saskatchewan and Alberta, the Northwest Territories, and. except in so
far as inconsistent with the Yukon Act, the Yukon Territory.
By "The Northwest Territories Act/' R. 8. C. 1906, c. 62,
sec. 12, it is provided that the laws of England relating to civil
and criminal matters, as the same existed on the 15th day of
July, 1870, shall be in force in the Territories in so far as appli-
cable, and not repealed or altered by any Act of the Parliament of
the United Kingdom or the Parliament of Canada, or by any
ordinance of the Territories, subject to the provisions of the Act.
And by section 36 of the same Act, " The procedure in criminal
cases shall conform as nearly as may be to the procedure existing
in like cases in England on the 15th July, 1870."
Application of the Criminal Law of England.
Ontario.
10. The criminal law in England, as it existed on the seventeenth
day of September, one thousand seven hundred and ninety-two. in so far
as it has not been repealed by any Act of the Parliament of the United
Kingdom having force of law in the province of Ontario, or by any Act
CRIMINAL LAW OF ENGLAND IN CANADA. 35
of the Parliament of the late province of Upper Canada, or of the
province of Canada, still having force of law, or by this Act or any
other Act of the Parliament of Cianada, and as altered, varied, modified
or affected by any such Act, shall be the criminal law of t^e province
of Ontario.
Quebec.
The Province of Quebec, from the signing of the Treaty of
Paris, 10th February, 1763, by which France ceded Canada to
Great Britain, until 1774, was governed by the constitution created
by letters patent under the Great Seal of Great Britain. The pro-
vince, during this period, remained in an unsettled state, owing to
the uncertainty that prevailed as to the laws actually in force.
In October, 1774, the new constitution became law. This is
contained in what is known as the " Quebec Act," i-4 Geo. III.
ch. 83.
By this Act it was provided that, so far as property and civil
rights were concerned, they were to be governed by the French
Code of Civil Procedure. But the criminal law of England should
alone obtain, to the exclusion of every other Criminal Code which
might have prevailed before 1764. The " Quebec Act " extended
the boundaries of the Province of Quebec, as defined in the pro-
clamation of 1763. The province was extended on the south and
west to the frontier of New England, Pennsylvania, New York
Province, the Ohio and the left bank of the Mississippi, and on
the north to the Hudson's Bay Territory. This included the
territory afterwards comprised within the limits of Upper Canada,
now Ontario.
By the Constitutional Act of 1791, 31 Geo. III., ch. 31, Canada
was divided into two provinces. Upper and Lower Canada. By
this Act the CWminal law of England was to obtain in both pro-
vinces.
The first meeting of the Legislature of Upper Canada was held
at Newark (now Niagara), on the 17th September, 1792, and was
formally opened on that day by Lieutenant-Governor Simcoe.
This, it will be noticed, is the day mentioned in the above sec-
tion (10). It is the criminal law of England as it existed on
that day, &c., . . . that shall be the criminal law of the Pro-
vince of Ontario.
This was declared by an Act of the Legislature of Upper
Canada, ^0 Geo. III., ch. 81, passed in July, 1800.
36 CRIMINAL LAW OF ENGLAND IN CANADA.
The provisions of sec. 10 of the Code are therefore a simple re-
aflSrmation of JiO Geo. III., ch. 81, U. C, except in so far as the
criminal law of England on the 17th September, 1792, has been
repealed by any Act, &c., &c.
The English Champerty laws were introduced and continued in
Upper and Lower Canada, now Quebec and Ontario, under the
Quebec Act, 1774.
See Meloche v. Deguire, (1903) 8 C. C. C. 89.
This case, however, has been held not to be applicable in Mani-
toba: Thomson v. Wishart, 19 M. R. 340, 16 C. C. C. 446.
Maintenance is an indictable offence in the Province of Ontario.
Hopkins v. Smith, (1901) 1 0. L. E. 659.
British Columbia.
11. The criminal law of England as it existed on the nineteenth
day of November, one thousand eight hundred and fifty-eight, in so far
as it has not been repealed by any ordinance or Act — still having the
force of law — of the colony of British Ck)lumbia. or the colony of
Vancouver Island, passfed before the union of the said colonies, or of the
colony of British Columbia passed since such union, or by this Act or
any other Act of the Parliament of Canada, and as altered, varied,
modified or affected by any s-uch ordinance or Act, shall be the criminal
law of the province of British Columbia.
Province of Manitoba.
12. The criminal law of England as it existed on the fifteenth day
of July, one thousand eight hundred and seventy, in so far as it id
applicable to the province of Manitoba, and in so far as it has not been
rej5ealed, as to the Province, by any Act of the Parliament of the United
Kingdom, or by this Act or any other Act of the Parliament of Canada,
and as altered, varied, modified or affected, as to the province, by any
such Act, shall be the criminal law of the province of Manitoba. See
Thomson v. Wishart, supra.
Effect of Act on Remedies.
13. No civil remedy for any act or omission shall be suspended or
affected by reason that such act or omisfsion amounts to a criminal
offence.
At common law (apart from statutory provisions) a person
may be exposed for one and the same act to an action for damages
to the injured person, and a criminal proceeding for the breach of
the peace, and sometimes statutes specially provide that an offender
shall be liable both to civil and criminal proceedings.
At the same time it is right and is the practice to take the one
matter into consideration in proceeding on the other : for instance,
wben an action is pending judgment will not be given on an in-
formation for assault. R. v. Malion, 4 A. & E. 575.
EFFECT OF CODE ON CIVIL REMEDIES. 37
Technically speaking, in such a case there is no estoppel on the
justices from proceeding unless, perhaps, where the proceeding be-
fore them, though nominally criminal, is actually for the vindication
of the party injured rather than for the ends of justice, But the
safe practical rule for the justices to act upon would seem to be
this, when it appears that civil proceedings are pending in respect
of the same matter, to dismiss the complaint, or pass a nominal
sentence, unless there has been an outrage on public order: or
unless by statutory provisions (as in the case of trade marks) the
civil and criminal proceedings are not to interfere with each other.
Should the second proceeding be merely to indemnify the com-
plainant from an alleged wrong a previous civil decision as to the
same matter will be conclusive; thus judgment against a servant
in the County Court for a wrongful dismissal is an answer to an
application to justices to enforce payment of wages: Foley, 8th
ed., pp. 171-173; Routledge v. Eislop, 29 L. J. M. C. 90.
The following cases illustrate the application of the general
principles of res judicata: Pease v. Chaytor, 3 B. & S. 620; Hind-
ley V. Haslam, 39 Q. B. D. 81 ; Wells v. Abrahams, L. E. 7 Q. B.
554; Schol v. Kay, 5 Allen !N". B. 244; Livingstone v. Massey,
23 U. C. R. 156; Taylor v. McCullough, 8 0. R. 309; Tremblay
V. Bernier, 21 S. C. R. 309; Brown v. Dolby, 7 U. C. R. 162.
A constitutional question has been raised in reference to this
section as to whether or not it is an interference with provincial
rights. See Paquet v. Lovoie, (1898) 6 C. C. C. 314.
In Doyle v. Bell, (18^4) 11 A. R. 326, it was held that the
jurisdiction of the provincial legislature over " property and civil
•rights " does not preclude the Parliament of Canada from giving
to an informer the right to recover by a civil action a penalty im-
posed as a punishment for bribery at a Dominion election. The
Dominion Election Act, 1874, provided that all penalties and for-
feitures (other than fines in cases of misdemeanour) imposed by
the Act shall be recoverable, with full costs of suit, by any person
suing for the same in an action of debt in any Court in the pro-
vince having competent jurisdiction, and it was held that this
enactment was valid.
As to dismissal of complaint for a common assault being a re-
lease from all further proceedings, civil and criminal, see sections
732, 733, and 734 of the Code, and Crankshaw's notes to section
734.
38 CHIMIN Ali CHARGE — CONSTITUTIONAL LAW.
" Criminal Charge," What Included in this Expression.
Provincial legislatures, in dealing with any subject assigned to
the Provinces by the B. JST. A, Act, may, by paragraph 15 of sec-
tion 92 of the Act, include provisions of a criminal character,
and an accusation under any such provision is a "criminal
charge," notwithstanding paragraph 27 of section 91 of the Act:
Re McNutt, 21 C. C. C. 157.
Constitutional Law.
A provincial legislature has no jurisdiction to make laws pro-
hibiting the maintenance of disorderly houses and prescribing
punishment therefor: Uptotn v. Brown, 21 C. C. C. 190.
A provincial statute, passed in 1907 in Quebec, prohibiting
theatrical performances on Sunday, was held ultra vires as crim-
inal law legislation within the exclusive jurisdiction of the Dom-
inion Parliament: Audette v. Daniel, 21 C. C. C. 403, and
similarly in the case of an Act prohibiting a restaurant keeper
from selling meals on Sunday: R. v. Marsh, 21 C. C. C. 413,
following Attorney-General v. Hamilton Street Railway, [1903]
A. C. 524, 7 C. C. C. 326.
See also R. v. Laity, 21 C. C. C. 417, and Ex parte Flanagan,
5 C. C. C. 82.
Felony and Misdemeanour.
14. The distinction between felony and misdemeanour is abolished,
and proceedings in respect of all indictable offences, except so far as they
are herein varied, shall be conducted in the same manner.
The Criminal Code of 1892 was intended to make complete
and exhaustive provision as to the subjects with which it deals, in
so far at all events as its provisions relate to procedure.
The common law procedure as to use of depositions taken upon
a preliminary inquiry at the trial is superseded by the provisions
of the Code. See section 999. R. v. Snelgrove, (1906) 12 C. C.
C. 189.
When a certain practice would have been permissible in case
of misdemeanour, and not permissible in case of felony, the prac-
tice has been to apply the rule as in cases of misdemeanour, and
such is the intention of the Code. R. v. Fox, (1903) 7 C. C. C.
OFFENCES PUNISHABLE UNDER DIFFERENT ACTS. 39
45,7. See also B. v. Cameron, (1897) 1 C. C. C. 169; Ex parte
Fortier, 6 C. C. C. 191.
Offences Punishable under Different Acts.
15. Where an act or omission constitutes an offence, punishable on
summary conviction or on indictment, under two or more Acts, or both
under an Act and at common law, the offender shall, unless the con-
trary intention appears, be liable to be prosecuted and punished under
either or any of such Acts, or at common law, but shall not be liable to
be punished twice for the same offence.
The accused was an officer in the public service. He was found
guilty of misbehaviour in office, which is an indictable offence at
common law. Held, that to constitute the offence it was not
essential that pecuniary damage should have resulted to the public
bj reason of such irregular conduct, or that the defendant should
have axjted from corrupt motives. B. v. Arnoldi, 23 0. K. 201.
The common law jurisdiction as to crime is still operative,
notwithstanding the Code, and even in cases provided for by the
Code, unless there is such repugnancy as to give prevalence to the
latter law. B. v. Cole, (1902) 5 C. C. C. 330.
The rule is that, if a common law offence is made subject to
greater punishment by statute, it may still be proceeded against as
a common law offence, but if a common law offence is made by
statute punishable by a summary conviction both remedies exist.
Hamilton v. Massie, 18 0. E. 585.
A person who has been convicted of an assault by a Court of
Summary Jurisdiction, but has been discharged without any
sentence, fine or imprisonment, or given security to be of good
behaviour, cannot afterwards be convicted on an indictment for
the same assault. B. v. Miles, 24 Q. B. D. 423, and see B. v. King,
[1897] 1 Q. B. 214, 66 L. J. Q. B. 87.
A summary conviction for assault is no bar to an indictment
for manslaughter when the party assaulted has subsequently died
from the effect of the blow. B. v. Morris, L. R. 1 C. 0. R. 90, 36
L. J. M. C. 84.
But a man who has been either acquitted or convicted before
justices for assault cannot afterwards be indicted for felon'ous
wounding in the same transaction. B. v. Wallrer, 2 M. & R. 446,
and see Wemyss v. Hopkins, L. R. 10 Q. B. 378.
A conviction before a competent tribunal and unreversed will
operate as an estoppel in a criminal proceeding upon, the points
decided by it. B. v. Houghton, 1 El. & B. 501.
40 AUTREFOIS ACQUIT OR CONVICT.
A police officer may be liable in an action for damages for
unlawfully arresting the plaintiff without a warrant in a case
where a warrant was necessary, although the plaintiff was after-
wards convicted on the charge, and such conviction stood unre-
versed: Justice V. Gosling, 21 L. J. C. P. 94,
At common law a former conviction or acquittal, whether on
a criminal summary proceeding or an indictment, will be an an-
swer to an information of a criminal nature before justices founded
on the same facts. The tTue test to shew that such previous
conviction or acquittal is a bar is whether the evidence neces-
sary to support the second proceeding would have been sufficient
to procure a legal conviction on the first. Archbold Cr. PI., 24th
ed., 177 : E. v. Clarlc, 1 B. & B. 473.
Where a judgment is reversed on writ of error the prisoner
cannot plead autrefois acquit or autrefois convict in bar; he never
having been in jeopardy in that case and a judgment reversed
being the same as no judgment. B.. v. Drury, 3 C. & K. 193, 18
L.^. M. C. 189.
Where a man is indicted for an offence and acquitted *he cah-
nof'be again indicted for the same offence, provided the first
indictment were such that he could have been lawfully convicted
on it-. .
iFso indicted a second time__he may plead autrejois^c^mt.
Russell (7th Ed.), Vol. II., p. 1982.
" The defence does not arise on a plea of autrefois acquit, but
on the well established rule at common law that, where a person
has been convicted and punished for an offence by a Court of oom-
petent jurisdict-on, transit in rem judicatam, that is, the convic-
tion shall be a bar to all further proceedings for the same offence,
and he shall not be punished again for the same matter." Black-
burn, J., at p. 381, in Weymss v. Hopkins, (1875) L. R. 10 Q. B.
378.
The principle of res judicata applies equally to an acquittal as
to a conviction.
When a conviction has been quashed in certiorari proceedings
for want of sufficient evidence upon wh'ch the magistrate could
properly convict, the person convicted cannot be again prosecuted
for the same offence or on any charge founded on the same facts :
R. V. Weiss (No. 2), 22 C. C. C. 42, reversing E, v. Weiss (No.
1), 21 C. C. C. 438.
AUTREFOIS ACQUIT OR CONVICT. 41
Where a person has been acquitted by a Court of competent
jurisdiction, the acquittal is a bar to all further proceedings to
punish him for the same matter, although a plea of autrefois
acquit may not be allowed because of the different nature of the
charges. R. v. Quinn, (1905) 10 C. C. C. 412.
An acquittal of a charge of an attempt to commit a crime is
not a bar to a prosecution on a charge of conspiracy with others
to commit the same crime: R. v. Weiss (No. 2), 22 C. C. C. 42.
The dismissal of a prior charge under the Canada Temperance
Act in which the offence was laid as between certain dates is not
necessarily a bar to a subsequent prosecution for a like offence
committed within the same period of time, but the question of
identity of offence is for the magistrate to decide : Ex parte Flana-
gan, 5 C. C. 0. 82; R. v. Johnson, 17 C. C. C. 172; R. v. Mitchell,
19 C. C. C. 113.
At the trial for an offence punishable on summary conviction,
after all the evidence for the prosecution had been heard and the
case closed, the magistrate, upon objection taken that material
proof was lacking, allowed the prosecutor to withdraw the charge
and lay a new information for the same offence.
Held, that prohibition should be granted against the magis-
trate enforcirio- a mnviptio-n gffPT g tnal np/^r, o.-./.h mpw iy]fArnia-
tion: R. v. Chew Deh. 21 C. C. C. 20.
A charge of theft does not impliedly include that of receiving
stolen goods. An accused, who is acquitted of theft, remains sub-
ject to the accusation of receiving, and cannot, by reason of his
acquittal, set up the defence of autrefois acquit. R. v. Groulx,
(1908) Q. E. 18 K. B. 118; 15 C. C. C. 20.
A conviction for creating a disturbance in a public street based
on an assault will prevent a subsequent prosecution by the person
injured for the same assault, although the former charge was laid
by the police : R. v. Mclntyre, 21 C. C. C. 216.
Common Law Justification or Excuse.
16. All rules and principles of the common law which render any cir-
cumstances a justification or excuse for any act, or a defence to any charge,
shall remain in force and be applicable to any defence to a charge under
this Act except in so far as they are hereby altered or are inconsistent
herewith.
" The Common Law is reason dealing by the light of experience
in human affairs." 1 Blackstone, 472.
4:2 THE CRIMINAL COMMON LAW.
Common Law, in the widest sense of the word, is that part of
the law of England which, before the Judicature Acts, was admin-
istered by the common law tribunals as opposed to equity, or that
part of the law of England which was administered by the Court
of Chancery, Sweet's Law Diet., 193.
By the Common Law one meant those maxims, principles and
forms of judicial proceedings which have no written law to pre-
scribe or warrant them, but which, founded on the law of nature
and the dictates of reason, have, by usage and custom, become
interwoven with the written laws, and by such incorporation form
a part of the municipal code of each state or nation which has
emerged from the loose and erratic habits of savage life to civiliza-
tion, order and a government of law. Am. & Eng. Encyc, Vol. G,
269.
Parliament never intended to repeal the Common Law, except
in so far as the Code either expressly or by implication repeals it.
So that, if the facts stated in an indictment constitute an indict-
able offence at Common Law, and the offence is not dealt with in
the Code, then unquestionably an indictment will lie at Common
Law; even if the offence has been dealt with in the Code, but
merely by way of statement of what is law, then both are in force.
Sedgewick, J., at p. 405, in Union Colliery v. The Queen, 4 C. C.
C. 400, 31 S. C. R. 81.
See remarks of Sir John Thompson in his speech in intro-
ducing the bill quoted in the last chapter, and R. v. Durocher,
21 C. C. C. 382, as to offences not provided for in the Code.
It is a misdemeanour at Common Law to incite a witness to
give particular evidence when the inciter does not know whether it
is true or false, and it is not necessary to prove that the evidence
was in fact given, or was actually false to the knowledge of the
witness. B. v. Cole, (1902) 5 C. C. C. 330.
Where the charge in respect of which the accused person has
been committed for trial is an offence at Common Law not pro-
vided for by the Code and formerly a misdemeanour, one Justice
of the peace may commit for trial and admit to bail as at Common
Law. Ibid., and see R. v. Garlile, 3 B. & Aid. 161.
There is at Common Law, apart from any statutory authority,
inherent power in the Court to order one or more grand juries to
be sTimmoned. R. v. McGuire, 4 C. C. C. 12.
THE CODE IN RELATION TO INFANTS. 43
Infants.
17. No person shall be convicted of an offence by reason of any
act or omission of such person when under the age of seven years.
18. No person shall be convicted of an offence by reason of an act
or omission of such person when of the age of seven, but under the ara
of fourteen years, unless he was competent to know the nature and
consequences of his conduct, and to appreciate that it was wrong.
These two sections will be considered together. Infants under
the age of discretion ought not to be punished by any criminal
prosecution whatever. 1 Hawhins, P. C. 2.
Under seven years of age indeed an infant cannot be guilty of
felony, for then a felonious discretion is almost an impossibility in
nature, but at eight years old he may be guilty of felony.
No one under fourteen years of age, though an infant, shall
be prima facie adjudged to be doli capax; yet if it appears to the
Court and jury that he was doli capax, and could discern between
good and evil, he may be convicted and suffer. Thus a girl of thir-
teen has been burnt for killing her mistress; and one boy of ten
and another of nine years old, who had killed their companion,
have been sentenced to death, and he of ten actually hanged; be-
cause it appeared upon their trials that the one hid himself, and
the other hid the body he had killed, which hiding manifested a
consciousness of guilt and a discretion to discern between good
and evil. 2 Blachstone, pp. 22 and 23.
But in all such cases the evidence of that malice, which is to
supply age, ought to be strong and clear beyond all doubt and
contradiction. Ibid.
Where a child between the age of seven and fourteen years is
indicted for felony, two questions are to be left to the jury: first,
whether he committed the offence; and secondly, whether at the
time he had a guilty knowledge that he was doing wrong. B. V,
Omen, 4 C. & P. 236, and see Arch. PL & Ev., 2Uh ed., p. 9.
The accused being under fourteen years of age is, by the com-
mon law of England, assumed to be physically incompetent to
commit the crime with which he is charged (Sodomy under see.
220), and I find no provisions in the Code altering the common
law in this respect. Section 10 (now 18) of the Code, in my opin-
ion, refers solely to the mental capacity to distinguish between
right and wrong, and not to physical ability to commit crime.
Ritchie, J., at p. 1^, in B. v. Hartlen, (1898) 2 C. C. C. 12.
44 THE CODE IN RELATION TO INFANTS.
As to incapacity for a child under fourteen to commit rape,
see sec. 298 (2), of the Code.
An infant under the age of fourteen years is presumed by law
unable to commit rape, and therefore, it seems, cannot be guilty
of it; and, though in other felonies malitia supplet aetaiem, in
some cases, as hath been shewn, yet it seems as to this fact the law
presumes him impotent as well as wanting discretion. 1 Hale,
P. C. 630.
A charge of perjury cannot be sustained against a boy under
fourteen without proof of guilty knowledge of wrong doing. B.
V. Carvery, (1906) 11 C. C. C. 331.
A child under fourteen, indicted for murder, must be proved
conscious of the nature of the act. R. v. Vamplew, 3 F. & F.
520.
A boy under fourteen years of age cannot be convicted of hav-
ing carnal knowledge of a girl under fourteen years (see Code, s.
301) ; or of any of the offences where carnal connection with a
woman is a necessary ingredient of the offence, or any attempt to
commit rape, or any lof the like mentioned offences. R. v. Waite,
[1892] 2 Q. B. 600.
Evidence of a child of tender years who is tendered as a wit-
ness may be received without oath. See section 1003 of the Code.
The child must, in the opinion of the Judge or Justice, be
possessed of sufficient intelligence, and understand the duty of
speaking the truth, to justify the reception of the evidence. No
case shall be decided upon such evidence alone, and such evidence
must be corroborated by some other material evidence. See sec.
16, Canada Evidence Act.
As to proof of age of a child, boy or girl, and inference as to
age from appearance, see section 984 of the Code.
Insanity.
19. No person shall be convicted of an offence by reason of an Act
done or omitted by him when labourins; under natural imbecilitv, or
disease of the mind, to snich an extent as to render him incapable of
appreciating the nature and quality of the act or omission, and of knowing
that such an act or omission was wrong.
2. A person labourine under ppeclfic delusions, but in other respects
sane, shall not be acquitted on the ground of insanity, under the nro-
visions hereinafter contained, unlefis the delusion*? caused him to bpljpve
in the existence of some state of things which, if it existed, would justify
or excuse his act or omission.
3. Every one shall be prefmmed to be sane at the time of doing or
omitting to do any Act until the contrary is proved.
INSANITY. 45
BlacJcstone, Vol. U, page 2Jf, says:
" In crimmal cases, therefore, idiots and lunatics are not
chargeable for their own acts, if committed when under these
incapacities; no, not even for treason itself. Also, if a man in
his sound memory commits a capital offence, and before arraign-
ment for it he becomes mad, he ought not to be arraigned for it,
because he is not able to plead to it with that advice and caution
that he ought. And if after he has pleaded the prisoner becomes
mad, he shall not be tried, for how can he make his defence? If
after he be tried and found guilty he loses his senses before judg-
ment, judgment shall not be pronounced, and if after the judg-
ment he becomes of an insane memory execution shall be stayed ;
for peradventure, says the humanity of the English law, had
the prisoner been of sound memory he might have alleged some-
thing in stay of judgment or execution." 1 Hale, P. C. 84.
Every person at the age of discretion is, unless the contrary be
proved, presumed by law to be sane and accountable for his actions.
But, if there be an incapacity or defect of the understanding, as
there can be no consent of the will, so the act cannot be culpable.
This species of non-volition is either natural, accidental or affected,
it is either perpetual or temporary, and may be reduced to three
general heads: 1. Idiocy or natural fatuity. 2. Adventitious in-
sanity. 3. The vice of drunkenness which produces a perfect,
though temporary, frenzy or insanity, usually denominted demen-
tia ajfeclata< or acquired madness. Arch. PI. & Ev., 2J/.th ed.,
p. 11.
The vice of drunkenness will not excuse the commission of any
crime, and an offender under the influence of intoxication can de-
rive no privilege from a madness voluntarily contracted, but is
answerable to the law equally as if he had been in the full posses-
sion of his faculties at the time. 1 Hale, 32; Co. Lift. 2^7; 1
Hawk, c. 1, 56. Although it has been said that, upon an indict-
ment for murder, the intoxication of the defendant may be taken
into consideration as a circumstance to shew that the act was not
premeditated. R. v. Grindley, 1 Eussell on Crimes, 88; R. v,
Thomas, 7 C. & P. 817; R. v. Meahin, Id. 297; but §ee R. v.
Carroll, Id. 145, overruling R. v. Grindley, supra.
When the crime alleged is such that the intention of the accused
is one of its constituent elements, the jury may look at the fact
that he was in drink in considering whether he formed the intent
necessary to constitute the crime. Stephen, J., in R. v. Doherty,
16 Cox C. C. 306.
46 INSANITY.
Delirium tremens caused by drinking, if it produces such a
degree of madness, although only temporary, as to render a person
incapable of distinguishing right from wrong, relieves him from
criminal responsibility for any act committed by him while under
its influence. R. v. Davis, (1881) 14 Cox 563.
As to intoxication of accused being evidence of incapacity to
understand the quality of his act, see R. v, Blythe, (1909) 15 C,
C. C, 224.
If the accused sets up insanity he must accept the onus pro-
handi. R. v. Layton, (1849) 4 Cox C. C. 149, that is, the burden
of proof of insanity is upon the defence. McNaghten's Case, 10
CI. & F. 200 ; R. v. Stokes, 3 C. & K. 185.
It seems clear, however, that, to excuse a man from punish-
ment on the ground of insanity, it must be proved distinctly that
he was not capable of distinguishing right from wrong at the
time he did the act, and did not know it to be an offence against
the laws of God and nature. See R. v. Offord, 5 C. & P. 168.
Where the intellectual faculties are sound, mere moral insanity,
— where a person knows perfectly well what he is doing, and that
he is doing wrong, but has no control over himself, and acts under
an uncontrollable impulse, — does not render him irresponsible. R.
V. Burton, 3 F. & F. 772.
Whether the prisoner was sane or insane at the time the act
was committed, is a question of fact triable by the jury, and de-
pendent upon the previous and contemporaneous acts of the party.
Upon a question of insanity a witness of medical skill may be
asked whether, assuming certain facts, proved by other witnesses,
to be true, they in his opinion indicate insanity. R. v. Frances, 4
Cox C. C. 57, per Alderson^ B., and Ceesw^ell, J. R. v. Searle,
1 M. & Eob. 75.
Counsel will not be allowed, upon a question of insanity, to
quote in his address to the jury the opinion of medical writers as
expressed in their books. R. v. Crouch, 1 Cox 94; R. v. Taylor, 13
Cox 77, per Brett, J.
See the answers of the Judges to questions propounded to them
by the House of Lords in R. v. McNaghten, uhi supra,
A Grand Jury have no authority by law to ignore a bill upon
the ground of insanity; it is their duty to find the bill, and then
the Court, either on arraignment or trial, may order the detention
of the prisoner during the pleasure of the Crown. R. v. Hodges,
8 C. & P. 195.
INTENT — MENS REA. 4?
As to the defence of insanity raised on the trial of an indict-
ment, see sees. 966 to 970 of the Code.
A case may be reserved at the instance of the Crown upon a
question of law as to whether there was any evidence of insanity
to support the jury's verdict of not guilty upon that ground. B.
V. Phinney {No. 1), (1903) 6 C. C. C. 469.
A remand by a magistrate in a preliminary inquiry must be
by warrant if made for more than three clear days, and it is essen-
tial that 'he accused should be personally present before the
magistrate. A remand for eight days for the purpose of a medical
examination of the accused as to sanity cannot be made on the
mere suggestion of the police officer without bringing the accused
personally before the magistrate. Be Sarault, (1905) 9 C. C. C.
448.
But, if the accused is brought personally before the magis-
trate, he may be remanded for an indefinite time for the purpose
of an inquiry into his sanity. R. v. Bouchard, 20 0. C. C. 95.
Insanity may be proved without medical testimony, and may
be inferred from the behaviour of the accused and facts proved.
R. V. DaH, 14 Cox C. C. 143.
As to detention, under warrant of the Lieutenant-Governor,
of a prisoner acquitted oh ground of insanity, see Re Duclos, Q.
E. 32 S. C. 154, 12 C. C. C. 278.
Intent — Mens Eea.
There is probably no maxim known to our law of more bene-
ficial operation than that which requires a criminal intent in order
to fix a criminal responsibility. It is generally expressed in the
"sviords " actus non facit reum, nisi mens sit rea," and, while it is of
very limited application in civil proceedings, it is almost univer-
sally applied to those which are of a criminal nature. Paley, 8th
ed., pp. 172-73.
An offence implies intention in the offender, and " wilfully "
is in general equivalent to "knowingly and fraudulently." Per
Erle, J., in R. V. Badger, 6 El. & Bl. 137.
Where there must be mens rea to constitute an offence, an
honest claim of right, however absurd, will frustrate a summary
conviction; but, when the absence of mens rea is not necessarily a
defence, the person who sets up a claim of right must shew some
grounds for its assertion and, if he fails to do so, is liable to be
48 INTENT — MENS EEA.
convicted of the offence charged against him. Watkins v. Major,
L. R. 10 C. P. 662, 44 L. J. M. C. 164.
As a general rule, no penal consequences are incurred where
there has been no personal neglect or default, and mens rea is
essential to an offence under a penal enactment unless a contrary
intention appears by express language or necessary inference.
Dickenson v. Fletcher, L. R. 9 C. P. 1, 43 L. J. M. C. 25 ; Aber-
dare I^cal Board v. Hammett, L. R. 10 Q. B. 162, 44 L. J. M.
C. 49.
" I do not think that the maxim as to the mens rea has so
wide an application as it is sometimes considered to have. In
old times and as applicable to common law, and to earlier statutes,
the maxim may have been of general application; but a difference
has arisen owing to the greater precision of modem statutes. It is
impossible now to apply the maxim generally to all statutes, and it
is necessar\- to look at the object of each act to see whether and how
far knowledge is of the essence of the offence charged." Stephen,
J,, in Cundy v. Lecocq, 13 Q, B. D. 207, and see Christie v.
Cooper, 69 L. T. 708.
Under ordinary circumstances an offence implies a mens rea,
but there are exceptions, and in this case the question is whether,
for the offence created by this statute, the knowledge of the person
who is the seller in fact, and who is the agent of the licensee to
sell, is sufficient to justify the conviction of the licensee. Lord
Alverstoxe, in Emery v. Nolloth, [1903] 2 K. B. 269, 72 L. J.
K. B. 620 ; and see Brooks v. Mason, [1902] 2 K. B. 743, 72 L.
J. K. B. 19, and R. v. Quirk, 16 C. C. C. 391.
" It is a general principle of our criminal law that there must
be, as an essential* ingredient in a criminal offence, some blame-
worthy condition of mind; sometimes it is negligence, sometimes
it is malice, sometimes guilty knowledge, but, as a general rule,
there must be something of that kind which is designated by the
expression mens rea. Moreover, it is a principle of our criminal
law that the condition of mind of the servant is not to be im-
puted to the master," &c., &c. Per Cave, J., at p. 741, in Chis-
holm V. Doulton, (1889) 22 Q. B. D. 736, approved in Somerset
V. Wade, [1894] 1 Q. B. p. 576; and see also Massey v. Morris,
[1894] 2 Q. B. 412; Bank of New South Wales v. Piper, (1897)
66 L. J. P. C. p. 76, and R. v. A. & N., 16 C. C. C. 381.
Upon a chargre under the fishery regulations of having sturgeon
in possession of the accused, under the size prescribed by law,
the doctrine of mens rea applies, and a conviction of the master
INTENT AND MENS KEA. 49
for his servant having possession of the fish without his master's
authority, or knowledge or connivance, was quashed. B. v.
Vachon, (1900) 3 C. C. C. 558.
Where the state of mind or intention is made an element by the
statute, e.g., where a statute inflicts a penalty on any person
wantonly doing a certain act, and such act is done by the agent of
an incorporated company, some knowledge of the particulars ought
to be brought home to the manager to render him liable. Small
V. Warr, 47 J. P. 20.
A guilty mind is necessarily implied as an essential ingredient
of bigamy under the Code ; if, therefore, the accused had an honest
and reasonable belief that she waS' unmarried before she went
through the form of marriage (the subject of the charge) it would
be a good defence. R. v. Sellars, (1905) 9 C. C. C. 153.
On a trial of a charge of theft accomplished by a peculiar
method of presenting a bank bill of large denomination in making
a small purchase, and managing to receive back too much change.
Held, that evidence of a similar practice in other cases was re-
ceivable to shew criminal intent. R. v. McBerny, 29 N. S. E.
327, 3 C. C. C. 339. See also R. v. Beardsley, 18 C. C. C. 389,
and R. v. Wilson, 21 C. C. C. 105.
Evidence of other similar acts tending only to shew that the
prisoner had a propensity to commit the crime charged is not
admissible. R. v. Iman Din, 18 C. C. C. 82, and R. v. Paul, 19 C.
C. C. 339.
Defendant was convicted of selling apples packed in packages
in which the face surface gave a false representation of the con-
tents of the packages. The mere exposing for sale under sucli
conditions held an offence under sec. 7 of 1 Edw. VII., ch. 27,
irrespective of whether the possessor knew of the fraudulent pack-
ing or was negligently ignorant of it. R. v. James, 6 C. C. C.
159, 4 0. L. E. 537.
If a man knowingly does acts which are unlawful, the presump-
tion of law is that the mens rea exists; ignorance of law will not
excuse him. R. v. Mailloux, 3 Pug. N. B. E. 493.
The word "knowingly," in sec. 179 (now 207) of the Code,
makes it incumbent on the prosecution to give some evidence of
knowledge of the contents of the obscene matter as being possessed
by the defendant. R. v. Beaver, (1905) 9 C. C. C. 415, 9 0. L. E.
418.
c.c.p. — 4
50 INTENT AND MENS REA.
It is not necessary to prove knowledge by the liquor dealer of
the identity of the person supplied with the liquor in order to sus-
tain a conviction, under the Liquor License Act of New Brunswick,
for the sale of liquor to an interdict. R. v. Dias, 1 C. C. C. 534.
As to descriptions of offences in examples shewn in the Code
forms, and their scope, see B. v. Skelton, (1898) 4 C. C. C. 467.
Where it is a simple omission to perform a statutory duty, a
mens rea, in the ordinary sense of that term, or the absence of
good faith, is not necessary to justify a verdict of guilty. An in-
tentional omission to do what the statute requires to be done is
sufficient. R. v. Lewis, 7 C. C. C. 261, 6 0. L. E. 132.
See the following cases as to proof of intent in the crimes men-
tioned :
Murder — To get life insurance money. R. v. Hammond, 1 C.
C. C. 373.
Poisoning. R. v. Sternaman, 1 C. C. C. 1.
Undertaking to tell fortunes. R. v. Marcott, 4 C. C. C. 437.
Arson — Motive. R. v. Barsalou, 4 C. C. C. 347.
Use of drugs for securing miscarriage. R. v. Earn, 5 C. C. C.
543.
Assault with intent to commit murder. Re Kelly, (1902) 5
C. C. C. 541.
Demand with menaces — Intent to steal. R. v. Lyon, 2 C. C. C.
242.
Sending threatening letter — Intent to extort. R. v. Dixon,
2 C. C. C. 589.
Entering dwelling in night time with intent to assault. R. v.
Biggins, 10 C. C. C. 456.
Wounding with intent — ^Verdict of "guilty without malicious
intent." R. v. Slaughenwhite, 9 C. C. C. 53, 173, 35 S. C. K. 607.
Finding of watch, pawning — Criminal intent. R. v. Slavin,
21 C. L. T. Occ. N. 54, 7 C. C. C. 175.
False pretences. R. v. Cadden, 4 Terr. L. R. 119, 5 C. C. C.
45.
On a charge of unlawfully and maliciously killing cattle
(under E. S. C. ch. 43), it appeared that the animal was killed by
the prisoners when it was in a helpless and dying condition, and
that the prisoners thought it was an act of mercy to kill it. Held,
INTENT AND MENS REA. 51
that the killing was not malicious; that the implication of malice
was rebutted, and in fact had been rebutted, a mens rea on the
part of the prisoners being disproved. R. v. Mennel, 1 Terr. L.
R. 487.
Manslaughter — Master and servant — l^egligence. U. v. Brown,
1 Terr. L. R. 475, and see E. v. GUsholm, 14 C. C. C. 15.
Mischief to mines. E. v. Watier, 17 C. C. C. 9,
Mischief by damaging property — Color of right. B. v. John-
son, 8 C. C. C. 123.
Accused were charged with maiming four stallions. A mali-
cious intent must still be shewn in the minds of accused. Accused
claimed that what was done was done for the protection of their
mares. Held, that the Alberta Ordinance respecting stallions and
bulls gives ample protection, and points out the course to be
adopted by persons aggrieved. The accused were convicted. B.
V. Eroesing, 10 W. L. E. 649, 16 C. C. C. 312.
The " colour of right " on the part of the defendant, which,
under Code sec. 481 (2), removes the criminal character of an act
of damage to property and ousts the jurisdiction of the magistrate
to summarily try a charge under sec. 507, means an honest belief
in a state of facts which, if it actually existed, would constitute a
legal justification or excuse. B. v. Johnson, 8 C. C. C. 123.
Selling liquor to Indians. A knowledge that purchaser is an
Indian is not essential to the offence. B. v. Pickard, (1908) 14 C.
C. C. 33.
False bank return. Materiality of wilful intent or guilty
knowledge. B. v. Browne, (1909) 14 C. C. C. 247.
Selling liquor to railway employee on duty. Want of know-
ledge no defence. B. v. Treanor, (1908) 14 C. C. C. 443.
Liquor License Law — Unlicensed premises and illegal sales.
Occupant "permitting" same. B. v. Irish, (1909) 14 C. C. C.
458.
Sales and prescriptions by druggists and physicians. B. v.
McAllister, 14 D. L. R. 430, 22 C. C. C. 166 ; B. v. Bussell, 14 D.
L. R. 792, 22 C. C. C. 131.
Offence under Motor Vehicles Act. B, v. Lahhe, 17 C. C. C.
417.
Murder— Negativing intent. B. v. Blythe, (1909) 15 C. C. C.
224.
62 COMPULSION OF WIFE.
Abortion — Operating with intent. B. v. Cook, (1909) 15 C.
C. C. 40.
Use of trade marks, Code sec. 490. R. v. Coulombe, 20 C. C.
C. 31.
Compulsion op Wife.
21. No presumption shall be made that a married woman commit-
ting an offence does so under compulsion because she commits it in the
presence of her husband.
The following is a brief statement of the common law respect-
ing the presumption of coercion of the wife by the husband, which
is now abrogated by the above enactment, and is no longer law.
The same sound principle which excuses those who have no mental
will in the prepetration of an offence, protects from the punish-
ment of the law those who commit crimes in subjection to the
power ot others, and not as a result of an uncontrolled free action
proceeding from themselves. -4 Bl. Com. 27, 1 Hale J^3.
This protection also exists in the public and private relations of
society; public, as between subject and prince, obedience to exist-
ing laws being a suflBcient extenuation of civil guilt before a muni-
cipal tribunal; and private, proceeding from the matrimonial sub-
jection of the wife to the husband, from which the law presumes
a coercion which in many cases excuses the wife from the conse-
quences of criminal misconduct. 1 Hale Ji-Jf.
In general, if a crime be committed by a feme covert in the
presence of her husband, the law presumes that she acted under his
immediate coercion, and excuses her from punishment. 1 Hale
455-6.
These presumptions of the coercion of the wife by the husband
may be rebutted by evidence, and if it appear that the wife was
principally instrumental in the commission of the crime, acting
voluntarily and not by restraint of her husband, although he was
present and concurred, she will be guilty and liable to punishment.
1 Hale 516. B. v. Cohen, 11 Cox 99; B. v. Torpey, 12 Cox 45.
This protection was not allowed in crimes which are mMa in se
and prohibited by the law of nature, nor in such as are heinous in
their character, or dangerous in their consequences, and therefore
if a married woman be guilty of treason, murder, or offences of the
like description, in company with and by coercion of her husband,
she is punishable equally as if she were sole. 1 Hale 4-5, Jfl, 1)8. B.
V. Manning, 2 C. & K 887.
IGNORANCE OF THE LAW — BREACHES OF THE PEACE. 53
Ignorance of the Law.
22. The fact that an offender is ignorant of the .law is not an excuse
for any offence committed by him.
Ignorance of the law will not excuse from the consequences of
gTiilt any person who has capacity to understand the law. 1 Hale,
h2.
If the offence be committed in England, a foreigner cannot be
excused because he does not know the law. i?. v. Esoy, 7 C. & P.
456.
And the same if it be committed in an English ship on the
high seas, which is in law part of the territory of England. 22. v.
Lopez, R. V. Sattler, Dears & B^ 525.
Ignorance or mistake of the fact may, in some cases, be allowed
as an excuse for the inadvertent commission of a crime ; as, for in-
stance, if a man, intending to kill a thief in his own house, kills
one of his own family, he will be guilty of no offence. 1 Hale U2,
43. B. V. Levitt, Cro. Car. 538.
But this rule proceeds upon a supposition that the original
intention was lawful ; for, if an unforeseen consequence ensue from
an act which was in itself unlawful, and its original nature wrong
and mischievous, the actor is criminally responsible for whatever
consequences may ensue. -4 Bl. Com. 27.
Ignorance of the law is an excuse where anyone acts under a
warrant or process which is bad in law on account of some defect
in substance, or in form apparent on the face of it, if he in good
faith and without culpable ignorance and negligence believes that
the warrant or process is good in law. See sec 29 of the Code.
See also R. v. Maodie, 20 TJ. C. R. 399 ; R. v. Mailloux, 3 Pugsley
(KB.) 493; R. v. Madden, 10 L. C. Jurist 344.
Breaches of the Peace.
46. Every one who witnesses a breach of the peace is justified in
interfering to prevent its continuance or renewal and may detain any
person committing or about to join in or renew such breach of the peace,
in order to give him into the custody of a peace officer, if the person
interfering uses no more force than is reasonably necessary for preventing
the continuance or renewal of such breach of the peace, or than is
reasonably proportioned to the danger to be apprehended from the con-
tinuance or renewal of such breach of the peace.
47. Every peace officer who witnesses a breach of the peace, and
every person lawfully assisting him, is justified in arresting any one
whom he finds committing such breach of the peace, or whom he. on
54 BREACHES OF THE PEACE.
reasonable and probable grounds, believes to be about to join in or renew
such breach of the peace,
2. Every peace oflScer is justified in receiving into custody any
person given into his charge as having been a party to a breach of the
peace by one who has, or whom such peace officer, upon reasonable and
probable grounds, believes to have, witnessed such breach of the peace.
An affray (from affraier, to terrify) is the fighting of two or
more persons in some public place to the terror of His Majesty's
subjects; for, if the fighting be in private, it is no affray, but an
assault. Affrays may be suppressed by any private person pre-
sent, wlio is justifiable in endeavouring to part the combatants,
whatever consequences may ensue. But more especially the con-
stable, or other similar oflBcer however denominated, is bound to
keep the peace, and to that purpose may break doors to suppress an
affray, or apprehend the affrayers, and may either carry them
before a justice or imprison them by his own authority for a con-
venient space till the heat is over, and may then perhaps also make
them find sureties for the peace. 1 Hawk. P. C. 137.
The common law right, and duty of conservators of the peace
and of all persons (according to their power), to keep the peace
and to disperse, and, if necessary, to arrest those who break it, is
obvious and well settled. 1 Hawk. P. C. 63, sec. 13. Grant v.
Moser, ^ M. & G. 123.
Suppression of Riot by Magistrate, &c.
48. Every sheriff, deputy sheriff, mayor or other head officer or acting
head officer of any county, city, town or district, and every magistrate
and justice of the peace, is justified in using, and ordering to be used.
and every peace officer is justified in using, such force as he. in good
faith, and on reasonable and probable grounds, believes to be necessary
to suppress a riot, and as is not disproportioned to the danger which he,
on reasonable and probable grounds, believes to be apprehended from the
continuance of the riot.
See sec. 94 for punishment of neglect to suppress riot.
Eiots, and unlawful assemblies must have three persons at
least to constitute them. Sec. 87.
Suppression of Eiot by Military.
49. Every one. whether subject to military law or not. acting in good
faith in obedience to orders given bv any sheriff, deputy sheriff, mayor or
other head officer or acting head officer of any county, city, town or dis-
trict, or by any magistrate or justice, for the suppression of a riot, is
justified in obeying the orders so given unless such orders are manifestly
unlawful, and is protected from criminal responsibility in using such force
as he. on reasonable and probable grounds, believes to be necessary for
carrying into effect such orders.
2. It shall be a question of law whether any particular order is
manifestlv unlawful or not.
SUPPRESSION OF RIOTS. 55
50. Every one, whether subject to military law or not, who in good
faith and on reasonable and probable grounds believes that serious mis-
chief will arise from a riot before there is time to procure the intervention
of any of the authorities aforesaid, is justified in using such force as he,
in good faith and on reasonable and probable grounds, believes to be
necessary for the suppression of such riot, and as is not disproportioned
to the danger which he, on reasonable grounds, believes to be apprehended
from the continuance of the riot.
51. Every one who is bound by military law to obey the lawful
command of his superior officer is justified in obeying any command given
him by his superior officer for the suppression of a riot, unless such
order is manifestly unlawful.
2. It shall be a question of law whether any particular order is
manifestly unlawful or not. v
52. Every one is justified in using such force as may be reasonably
necessary in order, —
(o) to prevent the commission of any offence for which, if com-
mitted, the offender might be arrested without warrant, and the
commission of which would be likely to cause immediate and
serious injury to the person or property of any one ; or,
(6) to prevent any act bedng done which he, on reasonable grounds,
believes would, if committed, amount to any such offence.
By the common law every private individual may lavi^fully
endeavour, of his own authority and without any warrant or sanc-
tion from a magistrate, to suppress a riot, by every means in his
power.
He may disperse, or assist in dispersing, those assembled, and
stay those engaged in it from executing their purpose, as well as
stop and prevent others whom he may see coming up from joining
the rest. If the occasion demands immediate action, and no oppor-
tunity is given for procuring the advice or sanction of a magis-
trate, it is the duty of every subject to act for himself, and upon
his own responsibility, in suppressing a riotous and tumultuous
assembly, and the law will protect him in all that he honestly does
in prosecution of this purpose. Phillips v. Eyre, L. E. 6 Q. B. 15,
per WiLLEs^ J.
Unlawful Assemblies and Riots.
87. An unlawful assembly is an assembly of three or more persons
who, with intent to carry out any common purpose, assemble in such a
manner or so conduct themselves when assembled as to cause persons in
the neighbourhood of such assembly to fear, on reasonable grounds, that
the persons so assembled will disturb the peace tumultuously, or will by
such assembly needlessly and without any reasonable occasion provoke
other persons to disturb the peace tumultuously.
2. Persons lawfully assembled may become an unlawful assembly if
they conduct themselves with a common purpose in such a manner as
would have made their assembling unlawful if they had assembled in that
manner for that purpose.
S. An assembly of three or more persons for the purpose of pro-
tecting the house of any one of their number against persons threatening
to break and enter such house in order to commit any indictable offence
therein is not unlawful.
56 RIOTS AND UNLAWFUL ASSEMBLIES.
The march of a Salvation Army band through the streets of a
town in which street music was prohibited, and which resulted in a
breach of the peace, was held not to be an unlawful assembly when
the bandsmen hadn't any reason to believe that their acts would
cause a breach of the peace. R. v. Clarkson, 17 Cox 483.
A procession of the Salvation Army was forcibly opposed by a
number of persons, but no violence was used by the Salvation Army
members. Held, that the assembly of the latter was not unlawful,
and that a man is not to be convicted for doing a lawful act,
although he knows that his doing it may cause another to do an
unlawful act. Beaity v. Gillbanhs, (1882) 9 Q. B. D. 308, 15 Cox
138.
It is not necessary to first read the Eiot Act or to proclaim the
meeting unlawful before using force to disperse it. The magis-
trates and police are justified in dispersing an assembly which is
unlawful. B. v. Kennett, 5 C. & P. 282.
After a refusal to disperse, force may be used to compel them
to do so, and the persons resisting may be punished as rioters.
See O'Kelly v. Harvey, 15 Cox. 435 ; Bedford v. Birley, 1 St. Tr.
(N.S.) 1071-1239; B. v. Mole, 3 St. Tr. (N.S.) 1312; B. v.
Jones, 6 St. Tr. (N.S.) 811; B. v. Fursey, (1833) St. Tr. (N.S.)
543, 6 C. & P. 81 ; B. v. Vincent, 9 C. & P. 91 ; Back v. Holmes, 16
Cox 263; B. v. Clarkson, 17 Cox 483; B. v. Orton, 14 Cox 226;
B. V. Mailloux, 3 Pugsley, N. B. 493.
A meeting lawfully convened may become unlawful if sedi-
tious words are spoken of such a nature as to be likely to produce
a breach of the peace. B. v. Burns, (1886) 16 Cox 355.
The mere fact of holding a meeting in a street does not neces-
sarily imply the impeding or incommoding of peaceable passengers,
and proof of actual impeding or incommoding is essential to justify
a conviction. B. v. Kneeland, Q. E. 11 K. B. 85 ; 6 C. C. C. 81.
Riot.
88. A riot is an unlawful assembly which has begun to disturb the
peace tumultuously.
89. Every member of an unlawful assembly Is guilty of an indictable
offence and liable to one year's imprisonment,
90. Every rioter is guilty of an indictable offence and liable to two
years' imprisonment with hard labour.
The accused was indicted for a riot and assault, and the jury
found him guilty of a riot, but not of assault. Held, that a con-
viction for riot could not be sustained, the assault, the object of
HEADING THE RIOT ACT. 57
the riotous assembly, not having been executed; although the de-
fendant might have been guilty of riot, or joining in an unlawful
assembly. R. v. Kelly, 6 C. P. 372.
This case was decided in 1857 under the Common Law defini-
tion of what was then a riot which included the actual execution of
the purpose intended (Hawkins, P. C. ch. 28, p. 513), and would
not now be good law under the above definition of a riot.
A procession having been attacked by rioters, the prisoner one
of the processionists, and in no way connected with the rioters, was
proved to have fired off a pistol on two occasions — first in the air,
and then at the rioters. So far as appears from the evidence, the
prisoner acted alone and not in connection with anyone else. Held,
that a conviction for riot could not be sustained. The prisoner
having been indicted jointly with a number of the rioters on a
charge of riot and convicted, upon a case reserved after the verdict,
the conviction was quashed. R. v. Corcoran, 26 C. P. 134.
Eeading the Riot Act.
91. It is the duty of every sheriff, deputy sheriff, mayor or other
head officer, and justice, of any county, city or town, who has notice that
there are within his jurisdiction persons to the number of twelve or more
unlawfully riotously and tumultuously assembled together to the dis-
turbance of the public peace, to resort to the place where such unlawful,
riotous and tumultuous assembly is. and among the rioters, or as near
to them as he can safely come, with a loud voice to command or cause
to be commanded silence, and after that openly and with loud voice to
make or cause to be made a proclamation in these words or to the like
effect. —
" Our Sovereign Lord the King charges and commands all persons
being assembled immediately to disperse and peaceably to depart to their
habitations or to their lawful business, upon the pain of being guilty of
an offence on conviction of which they may be sentenced to imprisonment
for life.
" God Save the King."
The proclamation must be read correctly. Where the magis-
trate, in reading the proclamation, omitted the words " God save
the King," it was held that persons remaining could not be
capitally convicted. R. v. Child, 4 C. & P. 442.
Before the proclamation can be read, a riot must exist, and the
effect of the proclamation will not change the character of the
meeting, but will make those guilty of felony who do not disperse
within an hour after the proclamation is read. R. v. Fursey, 6 C.
& P. 81.
By sec. 93 of the Code, the time for dispersion after the pro-
clamation is made is fixed at " thirty minutes."
58 DUTIES OF OFFICIALS AS TO EIOTS.
In reference to the duties of a magistrate in repelling a riot, see
Mr. Justice Littledale's address to the jury in R. v. Finney, 5 C.
& P. 254-261.
There may be a riot, though no more than three persons con-
stitute the unlawful assembly, but the Riot Act should not be read
unless there are at least twelve such persons.
92. AH persons are guilty of an indictable offence and liable to im-
prisonment for life who, —
(o) with force and arms wilfully oppose, hinder or hurt any person
who begins or is about to make the said proclamation, whereby such
proclamation is not made ; or,
(6) continue together to the number of twelve for thirty minutes
after such proclamation has been made, or if they know that its
making was hindered as aforesaid, within thirty minutes after such
hindrance.
93. If the persons so unlawfully, riotously and tumultuously assembled
together, or twelve or more of them, continue together, and do not dis-
perse themselves, for the space of thirty minutes after the proclamation
is made or after such hindrance as aforesaid it is the duty of every such
sheriff, justice and other officer, and of all persons required by them to
assist, to cause such persons to be apprehended and carried before a
justice.
2. If any of the persons so assembled are killed or hurt in the ap-
prehension of such persons or in the endeavour to apprehend or disperse
them, by reason of their resistance, every person ordering them to be
apprehended or dispersed, and every person executing such orders, are
indemnified against all proceedings of every kind in respect thereof.
3. Nothing in this section contained shall, in any way, limit or affect
any duties or powers imposed or given by this Act as to the suppression
of riots before or after the making of the said proclamation.
By sec. 1140 of the Code, no prosecution for any offence against
sec. 92 shall be commenced after the expiration of one year from its
commission.
94. Every sheriff, deputy sheriff, mayor or other head officer, justice,
or other magistrate, or other peace officer, of any county, city, town, or
district, who has notice that there is a riot within his jurisdiction, who,
without reasonable excuse, omits to do his duty in suppressing such riot,
is guilty of an indictable offence and liable to two years' imprisonment.
See R. V. Kennett, 5 C. & P. 282.
95. Every one is gnilty of an indictable offence and liable to one year's
imprisonment who, having reasonable notice that he is required to assist
any sheriff, deputy sheriff, mayor, or other head officer, justice, magistrate,
or peace officer in suppressing any riot, without reasonable excuse omits to
do so.
Parties to Offences.
69. Every one is a party to and guilty of an offence who, —
(a) actually commits it; or,
(b) does or omits an act for the purpose of aiding any person to
commit the offence ; or.
PRINCIPALS AND ACCESSORIES. 69
(c) abets any person in commission of the ofifence ; or,
(d) counsels or procures any person to commit the offence.
2. If several persons form a common intention to prosecute any un-
lawful purpose, and to assist each other therein, each of them is a party
to every offence committed by any one of them in the prosecution of such
common purpose, the commission of which offence was, or ought to have
been known to be a probable consequence of the prosecution of such
common purpose.
70. Every one who counsels or procures another person to be a party
to an offence of which that person is afterwards guilty, is a party to that
offence, although it may be committed in a way different from that which
was counselled or suggested.
2. Every one who counsels or procures another to be a party to an
offence is a party to every offence which that other commits in consequence
of such counselling or procuring, and which the person counselling or pro-
curing knew, or ought to have known, to be likely to be committed in con-
sequence of such counselling or procuring. 55-56 V., c. 29, s. 62.
Accessories.
By the provisions of these sections the common law distinction
between principals and accessories before the fact is abolished. All
are now principals, whether or not they are actual perpetrators of
the crime. The old rule defined parties to offences as follows:
The general definition of a principal in the first degree is one who
is the actor or actual perpetrator of the act: 1 Hale, 233, 615.
But it is not necessary that he should be actually present when the
offence is consummated, for if one lay poison purposely for another
who takes it and is killed, he who laid the poison, though absent
when it was taken, is a principal in the first degree. Yaux's Case,
4 Eep. 44; E. v. Barley, 4 C. & P. 369.
Principals in the second degree were those who were present
aiding and abetting at the commission of the act. Presence in this
sense is either actual or constructive. It is not necessary that the
party should be actually present, an ear or eye witness of the trans-
action; he is in construction of law present aiding and abetting
if, with the intention of giving assistance, he be near enough to
afford it should the occasion arise. Thus if he be outside the house
watching to prevent surprise, or the like, whilst his companions are
in the house committing a felony, such constructive presence was
sufficient to make him a principal in the second degree. Foster
347, 3.50 ; 1 Hale, 555. R. v. Owen, 1 Moody C. C. 96. But now
the law makes no such distinction. But he must be sufficiently
near to give assistance. R. v. Stewart, E. & E. 363; R. v. Lloyd,
19 0. E. 352.
There must be a participation in the act; for, although a man
be present whilst a felony is committed, if he take no part in it
60 ACCESSORIES TO CRIME.
and do not act in concert with those who commit it, he will not be
a principal in the second degree, merely because he did not endea-
vour to prevent the felony, or apprehend the felon. 1 Hale, 439.
An accessory before the fact is he who, being absent at the time
of the felony committed, doth yet procure, counsel, command or
abet another to commit a felony. 1 Hale, 615.
If the party be actually or constructively present when the
felony is committed, he is, as we have seen, an aider and abettor,
and not an accessory before the fact, for it is essential to constitute
the offence of accessory that the party should be absent at the time
of the offence. 1 Hahj 615.
Now, by the provisions of sees. 69 and 70 all these distinctions
between principals of the first and second degree, and between prin-
cipals and accessories before the fact, are done away with. They
are all now parties of equal degree and guilty of an offence who
(1) actually commit it; (2) who do, or omit to do, an act for the
purpose of aiding the commission of it; (3) who abet or aid in
the commission of it, or, (4) who counsel or procure any person to
commit it.
" The effect of this enactment (sec. 69), is that persons who do
anything for the" purpose of aiding another person to commit an
offence, or who abet another person in commission of an offence, are
themselves considered guilty of the offence and become liable to be
prosecuted, tried, convicted and punished as if they had themselves
committed it.'' Wurtele, J., at p. 474, in R. v. Boy, (1900) 3 6.
The rule of law now is that any person who, before the commis-
sion of an offence, does something to aid in its being committed, or
to help, or to facilitate its commission, or to furnish the means to
accomplish its commission, although he may not be present when
the offence is actually perpetrated, may be treated and dealt with as
a principal, and such person falls directly under paragraph (b) of
section 61 (now sec. 69) of the Criminal Code, as having done an
act for the purpose of aiding any person to commit an offence ; then
the person who, under the old rule of law, would have been princi-
pal in the second degree by abetting the perpetrator in the commis-
sion of an offence, falls under paragraph (c), and may likewise be
dealt with as a principal. Ihid. p. 476. See R. v. Smith, (1876)
38 r. C. R. 218, 227.
As to CGunselling murder, see sec. 266 of the Code.
ACCESSORIES TO CRIME. 61
If a person sees that a crime is about to be committed m his
presence and does not interfere to prevent it, that is not a partici-
pation rendering him liable, without evidence that he was there in
pursuance of a common unlawful purpose with the principal
offender. E. v. Curtley, 27 U. C. E. 613.
In order to be an aider and abettor, it is not necessary that the
person who thus participates in an offence should be present during
the commission of some incident constituting the offence; it is
sufficient that he aids and abets while a part of the criminal trans-
action is taking place, either at its commencement, or during its
progression, or later, but proximately at its consummation, or in-
deed while some act is being done which they may enter into the
offence though it might be consummated without it.
In the case of theft, the crime is generally complete when the
thief takes and carries away the object which he had formed the
design to steal. And any one who knowingly assists a thief to
conceal stolen property, which he is in the actual and proximate act
oi carrying away, renders aid to the actual perpetrator and princi-
pal and becomes an accessory to the crime, and under the provisions
of the Criminal Code can be dealt with like a principal. Wurtele,
J., at pp. 'M-ai; in U. v. Camylell, (1899) 3 C. C. C. 357.
Aid rendered to the principal offenders after the commission
of the crime is alone insufficient to Justify the conviction of the per-
son so aiding as a principal under sec. 61 (now 69). R. v, Graham,
(1898) 2 C. C. C. 388. See E. v. Hodge, (1898) 2 C. C. C. 350.
Theft by the fraudulent appropriation by the principal and a
fraudulent receiving by an accessory before the fact of the property
so appropriated may take place at the same time and by the same
act. R. V. Mcintosh, (1894) 5 C. C. C. 254, 23 S. C. K. 180.
A broker who merely acts as such for two parties, one a buyer
and the other a seller, without having any pecuniary interest in
the transaction beyond his fixed commission, and without any
guilty knowledge on his part of the intention of the contracting
parties to gamble in stocks or merchandise, is not liable to prosecu-
tion under sec. 201, pp. (a) and (b) (now sees. 231, 232) of the
Code, nor as an accessory under sec. 61. (now 69). R. v. Dowd,
(1899) 4 C. C. C. 170; and see R. v. Harhness (Ko. 1), (1904)
10 C. C. C. 193; R. v. Hendrie, (1905) 10 C. C. C. 298.
Whftm two prisoners Cabettor and principal are jointly in-
dicted, but an order is made for their separate tTial, the one is an
admissible witness for the other, and is bound to testify, although
62 ACCE880EIES TO CRIME.
he may prevent his evidence being used against himself at a sub-
sequent trial. R. v. Blais, (1905) 10 C. C. C. 354. '
The accused was the owner of a motor car, and was sitting in
the front seat with a lady who was driving the car, and it was
going at the rate of fifty miles an hour, which was dangerous to
the public. On appeal from a conviction it was held that the con-
viction Tvas right, and that the appellant was aiding and abetting
the offence, and as such might properly be convicted himself as
having done the unlawful act complained of, and that it was not
necessary to charge him with aiding and abetting. DuCros v.
Lamhoume, [1907] 1 K. B. 40, 21 Cox, 311.
Counselling a woman in Canada to submit in a foreign country
to an abortion, which in Canada would be an indictable offence, is
not in itself indictable in Canada if the operation is performed in
a foreign country. E. v. Walkem, (1908)' 14 C. C. C. 122, and see
R. V. McCready, (1909) 14 C. C. C. 482.
Under sec. 428 of the Code, in offences against sees. 425, 426
and 427, " the person by whom such thing is actually done, or who
connives at the doing thereof, is alone guilty of the offence."
This provision safeguards innocent partners where an offence
mentioned in the three sections above named is committed, " by the
doing of anything in the name of any firm, company or co-partner-
ship of persons."
Accessories After the Fact.
71. An accessory after the fact to an offence is one who receives,
comforts or assists any one who has been a party to such offence in order
ta enable him to escape, knowing him to have been a party thereto.
2, No married person whose husband or wife has been a party to an
offence shall become an accessory after the fact thereto by receiving, com-
forting or assisting the other of them, and no married woman whose hus-
band has been a party to an offence shall became an accessory after the
fact thereto, by receiving, comforting or assisting in his presence and by
his authority any other person who has been a party to such offence in
order to enable her husband or such other person to escape.
574. Every one is guilty of an indictable offence and liable to seven
years' imprisonment who, in any case where no express provision is made
by this Act for the punishment of an accessory, is accessory after the fact
to any indictable offence, for which the punishment is. on a first convic-
tion, imprisonment for life, or for fourteen years, or for any term longer
than fourteen years.
575. Every one who is accessory after the fact to any indictable of-
fence for committing which the longest term to which the offender can be
sentenced is less than fourteen years, if no express provision is made for
the punishment of such accessory, is guilty of an indictable offence and
liable to imprisonment for a term equal to one-half of the longest^ term
to which a person committing the indictable offence to which he is ac-
cessory may be Sentenced.
ACCESSORIES AFTER THE FACT. 63
The common law definition of an accessory after the fact is one
who, knowing a felony to have been committed by another, receives
relieves, comforts or assists the felon. 1 Hale 618; ^ B. Com. 37.
Any assistance given to one known to be a felon in order lo
hinder his apprehension, trial or punishment, is sufficient to make
a man an accessory after the fact, as for instance, that he concealed
him in the house: Dalion, 530-1; or shut the door against his
pursuers until he should have an opportunity of escaping : 1 Hale,
619; or took money from him to allow him to escape, or supplied
him with money, a horse or other necessaries in order to ena^ble
him to escape : 2 HawJc. c. 29, s. 26; or that he was in prison and
J. W. bribed the gaoler to let him escape ; or conveyed instruments
to him to enable him to break prison and escape: 1 Hale, 621. But
merely suffering the principal to escape will not make the party an
accessory after the fact, for it amounts at most to a mere omission.
1 Hah, 619.
He must be proved to have done some act to assist the felon
personally. R. v. Chappie, 9 0. & P. 353. But, if he employ an-
other person to do so, he will be equally guilty as if he harboured
or relieved him himself. R. v. Jarvis, 2 M. & Eob. 40.
A wife is not punishable as accessory for receiving, &c., her
husband, although she knew him to have committed felony. 1
Hale, 48, 621; R. v. Manning, 2 C. & K. 887, for she is presumed
to act under his coercion.
But no other relation of persons can excuse the wilful receipt
or assistance of felons ; a father cannot assist his child, a child his
parent, a brother his brother, a master his servant, or a servant
his master. Ibid.
If the wife alone, the husband being ignorant of it, receive any
other person being a felon, the wife is accessory and not the hus-
band. 1 Hale, 621.
And if the husband and wife both receive a felon knowingly, it
shall be adjudged only the act of the husband, and the wife shall
be acquitted. Ibid.
To constitute this offence it is necessary that the accessory have
notice, direct or implied, at the time he assists or comforts the
felon, that he had committed a felony. 2 Hawk. ch. 29, sec. 32.
On an indictment charging a man as a principal felon only, he
cannot be convicted of the offence of being an accessory after the
fact. R. V. Fallon. 33 L. J. M. C. 66.
64 ATTEMPTS TO COMMIT OFFENCES.
By sec. 849 of the Code, an accessory after the fact to any
offence may be indicted without the principal offender being in-
dicted or convicted. He may either be indicted alone or jointly
with the principal offender.
Attempts to Commit Offences.
72. Every one who, having an intent to commit an offence, does or
omits an act for the purpose of accomplishing hig object, is guilty of an
attempt to commit the offence intended whether under the circumstances
it was possible to commit such offence or not.
2. The question whether an act done or omitted with intent to com-
mit an offence is or is not only preparation for the commission of that
offence, and too remote to constitute an attempt to commit it, is a ques-
tion of law.
The general rule was that an attempt to commit a misdemea-
nour is a misdemeanour, whether the offence is created by Statute,
or was an offence at common law. R. v. Roderick, 7 C. & P. 795,
per Pakker> B.
It was formerly held that an attempt to commit a crime can
only, in point of law, be made out where, if no interruption had
taken place the attempt could have been carried out successfully,
so as to constitute the offence which the accused is charged with
attempting to commit. R. v. Collins, L. & C. 471, 33 L. J. M. C.
177. But this case has been overruled. R. v. Brown, 24 Q. B. D.
377, and, under above section, there may be a conviction for (e.g.)
an attempt to pick a pocket, though there be nothing in the pocket
at the time.
When the complete commission of an offence charged is not
proved but the evidence establishes an attempt to commit the
offence, the accused may be convicted of such attempt and pun-
ished accordingly. Sec. 949 of the Code.
When an attempt to commit an offence is charged, but the
evidence establishes the commission of the full offence, the ac-
cused shall not be entitled to be acquitted, but the jury may con-
vict him of the attempt, unless the Court before which such trial is
had thinks fit, in its discretion, to discharge the iurv from giving
any verdict upon such trial7 and to direct such person to be indicted
for the complete offence. ( 2 ) After a conviction for such attempt
the accused snail noi be liable to be tried again for the offence
which he was charged with attempting to commit. Sec. 950 of the
Code, and R. v. Taylor, (1895) 5 C. C. C. 89.
An assault with intent to commit an offence is an attempt to
commit such offence, and on an indictment for rape a conviction
ATTEMPTS TO COMMIT OFFENCES. 65
for an assault with intent to commit rape is valid. John v. The
Queen, 15 S. C. E. 385.
There cannot be a conviction for an attempt to commit an in-
decent assault, when me jury fails to convict on a charge of inHo-
cent assault. R. v. Menary, 18 C. C. C. 237.
Attempt to commit murder, R. v. Lapiere, (1897) 1 C. C. C.
413, Attempt to commit abortion, R. v. Hamilton, (1897) 4 C.
C. C. 251. Theft from the person, conviction of attempt^ R. v.
Morgan (No. 2), (1901) 5 C. C. C. 272. Attempt to carnally know
girl under 14, R. v. DeWolfe, (1904) 9 C. C. C. 38. Attempt to
commit rape, assault with intend to commit rape, R. v. Preston,
(1905) 9 C. C. C. 201. Attempt to obtain money by false pre-
tences. R. V. Lyons (No. 1), 16 C. C. C. 152.
Attempt to steal. R. v. Montgomery, 19 C. C. C. 233.
Is an " assault with intent to commit rape " an attempt to
commit the felony charged within the meaning of section 183,
E. S. C. ch. 174 (now sec. &49 Criminal Code) ? " I am of the
opinion that, prima facie, unless there is some enactment shewing
a contrary intention and therefore calling for a narrower construc-
tion of section 183, that it clearly is so. This opinion is founded
on the consideration that an indictment for the common law mis-
demeanour of an attempt to commit a felony always alleged the
particular overt act of which the attempt consisted, and, further,
that, inasmuch as an attempt to commit a crime is, as Mr. Justice
Stephens defines it (Stephens' Digest Criminal Law, 4th ed., Art.
49), 'an act done with intent to commit that crime, and forming
part of a series of acts which would constitute the actual commis-
sion if it were not interrupted,' (a definition which has the support
of ample judicial authority as the learned author shews in the
illustrations appended to his text), so the converse holds good that
an assault with intent to commit rape is an attempt to commit that
offence. The only purpose and effect of section 38 (E. S. C. 1886,
ch. 162) (now sec. 300 of the Code), was, as it seems to me, to
affix a new and precise punishment to this particular species of the
misdemeanor of attempting to commit a felony. . . . The
whole subject of the section manifestly was to define the punish-
ment for an offence which always constituted a misdemeanour at
common law, and for which the 183rd section of the Procedure
Act, E. S. C. 174 (now sec. 949 of the Code), had provided there
might be a conviction on an indictment for the felony." Strong,
c.c.p. — 5
66 ATTEMPTS TO COMMIT OFFENCES.
J., in John v. The Queen, (1888) 15 S. C. R. 384. See section 949
of the Code, ante.
Attempts to Commit Certain Specified Offences.
By the Code, attempts to commit the following crimes are ex-
pressly declared to be indictable offences :
Sec. 188. To break prison.
Sec. 203. To commit sodomy.
Sec. 216. To procure girl for defilement.
Sec. 216 (c). Procuring girl for prostitution.
Sec. 216 (d). To procure a girl to leave Canada to become an
inmate of a brothel elsewhere.
Sec. 216 (f) To procure girl to leave her abode to become an
inmate of a brothel in Canada.
Sec. 216 (g) To procure carnal connection by threats.
Sec. 264. Who, with intent to commit murder, attempts to
(a) administer poison, (c) to shoot at any person, (d)
to drown any person, or (h) by any other means
attempts to commit murder.
Sec. aYO. Suicide.
Sec. 276. To choke any person or to administer a narcotic.
Sec. 280. Bodily injury by explosives.
Sec. 300. Attempts to commit rape.
Sec. 302. To defile children under 14.
Sec, 303. To procure abortion.
Sec. 304. Miscarriage.
Sec. 454. To compel execution, alteration or destruction of a
document.
Sec. 467. To use forged document.
Sec. 478 (b). To obtain anything by forged instrument or by
probate of forged will.
Sec. 512. To commit arson.
Sec. 514. To set fire to crops, or trees or timber.
Sec. 521. To damage telegraph, telephone or fire-alarm.
Sec. 523. To cast away or destroy any ship.
Sec. 536. To kill, maim, wound or poison cattle.
There are also other sections dealing expressly with attempts to
commit particular crimes.
ATTEMPTS^CONSPIKACIES. 67
Attempts to Commit Offences Generally.
The following three sections provide for the punishment for
attempts to commit crimes generally.
570. Every one is guilty of an indictable offence and liable to seven
years' imprisonment who attempts, in any case not hereinbefore pro-
vided for, to commit any indictable offence for which the punishment is
imprisonment for life, or for fourteen years, or for any term longer than
fourteen years.
571. Every one who attempts to commit any indictable offence for
committing which the longest term to which the offender can be sen-
tenced is less than fourteen years, and no express provision is made by
law for the punishment of sudh attempt, is guilty of an indictable offence
and liable to imprisonment for a term equal to one-half of longest term
to which a person committing the indictable offence attempted to be com-
mitted may be sentenced.
572. Every one is guUty of an indictable offence and liable to one
year's imprisoument who attempts to commit any offence under any
statute for the time being in force and not inconsistent with this Act,
or incites or attempts to incite any person to commit any such offence,
and for the punishment of which no express provision is made by such
statute.
CONSPIEACIES,
Sec. 573 of the Code provides for all cases of conspiracy not
thereinbefore provided for, as follows :
573. Every one is guilty of an indictable offence and liable to seven
years' imprisonment who, in any case not hereinbefore provided for, con-
spires with any person to commit any indictable offence.
Other sections of the Code relating to conspiracy are as follows :
Sec. 75. Conspiracy to commit acts of treason.
Sec. 78, Conspiracy in relation to deposing His Majesty,
(b) to levy war, (c) to induce invasion.
Sec. 79. Conspiracy to intimidate a legislature.
Sec. 178. Conspiring to bring false accusation.
Sec. 218. Conspiracy to defile any woman.
Sec. 226. Conspiring to murder.
Sec. 444. Conspiring to defraud the public or any person
generally.
Sec. 496. Conspiracy in restraint of trade.
Sec. 863. Indictment relating to conspiracy by fraudulent
means.
A conspiracy is an agreement between two or more persons —
1. Falsely to charge another with a crime punishable by law
either from a malicious, or vindictive motive, or feeling, toward
the party, or for the purpose of extorting money from him.
68 CONSPIBACIES.
2. Wrongfully to injure, or prejudice, a third person, or any
body of men, in any other manner.
3. To commit any offence punishable by law.
4. To do any act with intent to pervert the course of justice.
5. To effect a legal purpose with a corrupt intent, or by im-
proper means.
6. To which may be added conspiracies or combinations by
employees or workmen in the course of trade disputes. Arch. PL
& Ev., 24th ed,, 1410, and see the cases there cited.
The indictment in the first place must charge the conspiracy.
And in stating the object of the conspiracy the same certainty
is not required as in an indictment for the offence, etc., conspired
to be committed; as for instance an indictment for conspiring
to defraud a person of " divers goods " has been held sufficient.
B. V. Blake, 6 Q. B. 126, 13 L. J. M. C. 131 ; Sydsorff v. B., 11
Q..B. 245.
So an indictment charging a conspiracy " by divers false pre-
tences and indirect means to cheat and defraud of his monies "
was held good. B. v. Gompertz, 9 Q. B. 824; B. v. Gill, 2 B. &
Aid. 204; B. v. Aspinall, 2 Q. B. D. 60; and it is not necessary in
order to maintain such an indictment to prove such a false pre-
tence as would, if money had been obtained on it by one person
alone, have been sufficient to sustain an indictment against him
for obtaining money by false pretences. B. v. Hudson, Bell, 263,
29 L. J. M. C. 145.
But an indictment charging a conspiracy to defraud the credi-
tors of W. E. (without any further statement of the conspiracy or
of any overt act) is bad as being too general. B. v. Fowle, 4 C.
& P. 592.
It is usual to set out the overt acts, that is to say, those acts
which may have been done by any one or more of the conspirators
in order to effect the common purpose of the conspiracy. But
this is not essentially necessary : the conspiracy itself is the offence,
and whether anything has been done in pursuance of it or not is
immaterial. B. v. Gill, 2 B. & Aid. 205 ; B. v. Seivard, 1 A. & E.
706; B. V. Kennel; 5 Q. B. 49, 12 L. J. M. C. 135; and see
sec. 863 of the Code.
A conspiracy consists not merely in the intention of two of
more, but in the agreement of two or more, to do an unlawful act,
or to do a lawful act by unlawful means.' So long as such a de-
sign rests in intention only it is not indictable. But where two
CONSPIRACIES, 69
agree to carry it into effect the very plot is an act in itself, and
the act of each of the parties, promise against promise, actus
contra actum, capable of being enforced, if lawful, is punishable If
for a criminal object, or for the use of criminal means. Mulcahy
V. The Queen, L. K. 3 H. L. at p. 317.
Overt acts which are laid and proved against some of the de-
fendants may be looked at as againt all of them to shew the
nature and objects of the conspiracy. R. v. Esdaile, 1 F. & F. 213.
An indictment for conspiracy to defraud is good without set-
ting out any overt act, and the name of the person injured or
intended to be injured need not be stated therein. It. v. Hutchin-
son, (1904) 8 C. C. C. 486; and see E. v. Patterson, (1895) 2 C.
C. C. 339.
It is not necessary to prove that the defendants actually met
together and concerted the proceeding; it is sufficient if the jury
are satisfied from the conduct of the accused, either together or
severally, that they were acting in concert. U. v. Fellowes, (1859)
19 U. C. E. 48, 58; Farquar v. Robertson, 13 P. E. 156.
There is no unvarying rule that the agreement to conspire
must first be established before the particular acts of the indi-
viduals implicated are admissible. Boyd, C, at p. 480, in R. v.
Connelly, (1894) 1 C. C. C. 468; 25 0. E. 151.
An indictment for a conspiracy may be tried in any county
in which an overt act has been committed in pursuance of the
original illegal combination and design. Ihid. It was competent
for the jury to group the detached facts and view them as indicat-
ing a well understood or concerted purpose on the part of all the
actors and privies. Ihid.
It is now, as I think, entirely beyond question that a conspir-
acy can be established without any proof of the agreement in fact
between or amongst the alleged conspirators. Ferguson, J., at p.
490, ibid., citing R. v. Fellowes, 19 U. C. E. 48, at pp. 57-58, and
see R. V. Connelly, supra.
A conspiracy to defraud is indictable although the object was
to commit a civil wrong, and although if carried out the act agreed
upon would not constitute a crime. MacMahon, J., in R. v. De-
fnes, (1894) 1 C. C. C. 207, at pp. 212, 213, citing R. v. War-
burton, L. E. 1 C. C. E. 274; R. v. Tamblyn, 25 0. E. 645.
One conspirator may be indicted and convicted without joining
the others although they are living and within the jurisdiction.
70 C0N8PIBACIE8.
And a conspiracy to defraud is indictable although the conspira-
tors were unsuccessful in carrvipg out the fraud. R. v, Frawley,
(1894) 1 C. C. C. 253, 25 0. K. 431. See R. v. Carlin (No. 2),
(1903) 6 C. C. C. 507; Q. E. 12 K. B. 483.
An indictment for conspiracy to defraud may properly charge
that the conspiracy was with persons unknown, if neither the
Crown nor the private prosecutor had definite information of the
identity of the alleged co-conspirators. R. v. Johnston, (1902) 6
C. C. C. 232.
The objection that the indictment is bad because it unneces-
sarily condescends to state the details of the proposed fraud is
clearly untenable. The offence is the conspiracy to defraud by
fraudulent means; the description of the means is mere surplusage
as far as concerns the sufficiency of the indictment. (See sections
852 and 855 of the Code.)
The general effect of the provisions with regard to these mat-
ters is to wipe out technicalities and to make a criminal trial a
simple and business-like proceeding. Hunter, C.J., at p. 491, in
R. V. Hutchinson, (1904) 8 C. C. C. 486, 11 B. C. E. 24.
It is not necessary in an indictment for conspiracy to set out
any overt acts, and the name of the person injured or intended to
be injured need not be stated therein. Ibid.
You may not introduce evidence to impeach the character of
your own witness, but you may go on with the proof of the issue
although the consequence of so doing may be to discredit the
witness in whole or in part. Ibid, pp. 494-495.
Extradition will lie as for a separate crime in respect of any
overt act of a conspiracy which constitutes one of the crimes men-
tioned in the extradition treaty between Canada and the United
States. Re Gaynor v. Greene (No. 3.), 9 C. C. C. 205.
A-: to contents of indictment see R. v. Goodfellow, (1906) 10
C. C. C. 425; R. v. Sinclair, (1906) 12 C. C. C. 20; R. v. Plum-
mer, [1902] 2 K. B. 339; R. v. BraUsford, [1905] 2 K. B. 730; B.
V. Gibson, 16 0. E. 704.
As to trade combines, see R. v. Elliott, (1905) 9 C. C. C. 505,
9 0. L. E. 648.
Two or more corporations may be indicted for conspiracy in
furthering of a trade combine under sec. 498 of the Code without
joining a personal defendant. R. v. Centred Supply Assn. Ltd.,
(ir07) 12 C. C. C. 371.
CONSPIRACIES — CORROBORATION. 71
Evidence of the nature of the conspiracy alleged may be given
before proof of the criminal agreement. Ihid.
Traders may legally organize for the protection and advance-
ment of their common interests, provided that the interests of the
public are not to be unduly impaired. R. v. Gage (No. 1), (1907)
13 C. C. C. 415.
Before the acts of one conspirator can be given in evidence
against another, it must be shewn that a conspiracy existed, that
the alleged conspirators v^ere parties to the same and that the
acts in question were done in furtherance of the common design.
R. V. Gage (No. 2), (1908) 13 C. C. C. 438, 7 W. L. E. 564, & 18
M. E. 175.
The offence of conspiring to unduly prevent or lessen compe-
tition in the sale or supply of an article of commerce under sec.
498 (d) of the Code may exist without regard to the question
whether the effect of the combine has been to raise or lower prices.
R. V. Clarke (No. 1), (1907) 14 C. C. C. 46.
Where a defendant is arraigned and tried alone upon a charge
of conspiracy, he may be convicted and sentenced without first
proceeding with the trial of the co-conspirators. R. v. Clarke (No.
2), (1908) 14 C. C. C. 57, 9 W. L. E. 243, 1 Alta. L. E. 358.
Where a conspiracy is shewn to have been carried on in two
counties there is jurisdiction to commit for trial and to hold
the trial itself in either of the counties, or in another county
within the same province, if the accused persons are apprehended
in such other county. (Sec. 577 of the Code). R. v. 0' Gorman,
(1909) 15 C. C. C. 173, 18 0. L. E. 427, 13 0. W. E. 1189.
Corroboration.
1002< No person accused of any offence under any of the hereunder
mentioned sections shall be convicted upon the evidence of one witness,
unless such witness is corroborated in some material particular by evi-
dence implicating the accused : —
(a) Treason, Part II., section seventy-four;
(6) Perjury, Part IV., section one hundred and seventy-four;
(c) Offences under Part V., sections two hundred and eleven to two
hundred and twenty, inclusive ;
(d) Procuring feigned marriage. Part VI., section three hundred and
nine ;
(e) Forgery, Part VII.. sections four hundred and sixty-eight to four
hundred and seventy inclusive.
Part v., sees. 211 to 220 inclusive, apply to offences against
women and girls, seduction, carnal knowledge and defilement.
72 COEBOBOKATION.
At common law one witness was sufficient in aU cases ,(with the
exception of perjury) both before the grand jury and at the trial.
2 Hawk. ch. 46, sec. 2.
In high treason where the overt act alleged is the assassination
of the King or any direct attempt against his life or person, one
witness is sufficient. 39 & 40 Geo. Ill, ch. 93 ; 5 & 6 Vic, ch. 51,
sec. 1.
One witness is sufficient to prove a collateral fact, as for in-
stance to prove that the defendant is a natural-born subject or the
like. R. V. Yaughan, 13 St. Trials, 485, at p. 535.
JUEISDICTION IN GENERAL. 73
CHAPTER III.
Jurisdiction of Justices in General.
We have seen that in all the Provinces justices of the peace
and magistrates are appointed by the Lieutenant-Governor in coun-
cil under the Great Seal of the Province. But the territorial
limits differ. Some are appointed for counties, districts, cities
and tovrns; others are appointed for the whole Province. It is
necessary therefore for all appointees to look carefully to their
commissions and ascertain the limits within which they can exer-
cise their jurisdiction.
A justice of the peace cannot exercise his judicial functions
elsewhere than within the limits of his territorial jurisdiction.
E. V. Bowling, (1889) 17 0. R. 698; E. v. Hughes, (1884) 17 K
S. E. 194.
His judicial acts must be done within the territorial limits of
the district, county or place for which he is appointed. E. v. Tot-
ness, 18 L. J. M. C. 46 ; E. v. Stockton, 7 Q. B. 520.
He may be specially authorized by statute, or his commission,
or the order in council appointing him, to exercise his judicial
function elsewhere. The judicial acts of a justice (who is not
authorized otherwise) are, when performed outside of the territory
for which he is appointed, absolutely null and void.
Where a police magistrate for the County of Brant, whose com-
mission excluded the City of Brantford, convicted the defendant
of an offence against the Canada Temperance Act, committed at a
place in the county outside of the city, and the information was
laid, the charge heard and adjudicated upon and the conviction
made in the City of Brantford, it was held that the magistrate had
no jurisdiction. E. v. Beemer, 15 0. E. 266, decided in 1888 by
the Q. B. Division, although the C. P. Division had, in 1887 in
E. V. Lee, 15 0. E. 353, decided the other way.
An accused was charged under section 206 of the Code and
was convicted by the Stipendiary Magistrate of Vancouver County,
acting for and at the request of the Police Magistrate of Vancouver.
The conviction was made under section 77l7 of the Code. Held,
that the magistrate liad no jurisdiction under sub-sec. 2 of that
section as he was not a Stipendiary Magistrate for the City of
Vancouver. E. v. Nar Singh, 10 W. L. E. 523, 14 C. C. C. 45*4.
74 JURISDICTION GENERALLY.
A justice cannot do any coercive act (unless authorized by
a particular statute) out of his county, but voluntary information
and recognizances are good if taken by him anywhere. 2 Haw-
kins, ch. 8, sec. 78. That is to say, a Justice may perform minis-
terial acts out of his jurisdiction. Paley on Convictions, 8th ed.,
19. Langtvith v. Dawson, 30 C. P. 375.
Instances of judicial acts are admitting to bail, taxing costs,
taking of an information, issuing summons or warrant of arrest.
Ministerial acts which may be done by the Justice anjrwhere are
issuing a warrant of commitment after conviction, the backing of
a warrant, granting a certificate of dismissal of a complaint, &c.
See Paley, 8th ed., 21 and 22, and cases there cited. Receiving an
information is now held to be a judicial act. R. v. Ettinger, 3 C.
C. C. 387.
A magistrate will be presumed to be acting within the terri-
torial limits of his jurisdiction in the absence of evidence to the
contrary. R. v. Fearman, 22 0. E. 456.
The acts of a justice are either ministerial or judicial.
The test of an act being judicial or ministerial, is whether
the justices are entitled to withhold their assent, if they think fit,
or whether they can be compelled by mandamus, or rule, to do the
act in question. Per Lord Campbell, C.J., in Staverton v. Asli-
hurton, 24 L. J. M. C. 53.
The issue of a warrant of commitment in execution of a sum-
mary conviction is a ministerial and not a judicial act, and, there-
fore, although the special statute under which the conviction was
made was repealed before issue of warrant of commitment, the
latter may be issued notwithstanding the repeal. Re Thomas
Lynch, 12 C C. C. 142.
Persons exercising judicial functions, but being also required to
perform ministerial acts, may be sued for damages occasioned by
their neglect to perform the latter, and formerly no allegation of
malice was necessary in such action. Ferguson v. Kinnoull, 9
CI. & Fin. 251.
If a statute refers a matter to " any two justices " they must
be justices having jurisdiction according to the rules of the com-
mon law or by statute, and such words do not enable them to act
out of their jurisdiction either in respect of its local limits or
otherwise. Re Peerless, 1 Q. B. 143, 153. Paley, 8th ed., 22.
See also R. v. Giovanetti, 5 C. C. C. 157; R. v. Benner, 8 C.
C. C. 398; R. v. Townshend, 11 C. 0. C. 94; Ex parte Tait, 10 C.
C. C. 513.
JURISDICTION OTHER QUALIFICATIONS. 75
If the summons is issued by another justice than the one who
heard the complaint, it is invalid, and the defect is not cured by the
defendant appearing to answer the summons if he objects to the
jurisdiction. Dixon v. Wells, 25 Q. B. D. 249.
As to the general question of the jurisdiction of justices of the
peace sitting in the absence of police magistrates: see E. v. Gor-
don, 16 0. E. 64; R. v. Lynch, 19 0. R. 664.
The appointment of a county police magistrate does not super-
sede a like previous appointment of another person ; both will have
jurisdiction unless the latter appointment is expressed to be in the
place and stead of the former. B. v. Spellman, 12 C. C. C. 99.
Other Qualifications.
A justice is not only required to act within his territorial
jurisdiction, but must be duly qualified before he acts, and he
must not be disqualified by reason of interest, bias, or partiality.
In Ontario, Quebec and Manitoba, justices of the peace, as we
have seen, must have the necessary property qualifications and
mu^t take and subscribe the oath of qualification and oath of
office and file the same. In all the other provinces and the terri-
tories where no property qualification is required, justices of the
peace must take and subscribe the oath of office as prescribed and
file the same with the officer -indicated by the statute. Magistrates
must do the same.
Barristers, solicitors and advocates are not eligible as justices
of the peace while they continue to practice. Sheriffs and coroners,
except as to the latter in special cases, are also ineligible.
The acts done by a justice of the peace who is not duly qualified
and taken the oath at the session, are not absolutely void, and
therefore the person executing the warrant of such justice is not
answerable in an action of trespass. Margate Pier Co. v. Hannam,
3 B. & Aid. 266.
A police magistrate for one town in a county has no jurisdic-
tion to try a charge for an offence against a provincial statute
committed in another town having its own police magistrate in
the same county, except at the request of the latter or in his illness
or absence, notwithstanding the provisions of R. S. 0. 1897, ch.
87, sec. 30, now sec. 28 of ch. 36 of 10 Edw. VII.
When sitting elsewhere than in the town for which he is police
magistrate, a magistrate is ex officio a justice of the peace for the
76 JURISDICTION — QUALIFICATIONS. '
whole county ; and, under section 30, K. S. 0., eh. 87, above referred
to, he has jurisdiction in offences against provincial laws to exer-
cise the powers of two justices, but not the powers of another police
magistrate. B. v. Holmes, 12 C. C. C. 235. In this case, Magee,
J., delivered a dissenting opinion, and the judgment of Beitton,
J., in R. V. Spellman, (1906) 12 C. C. C. 99, was discussed. See
E. S. 0. 1914, ch. 88, sec. 34.
The above decision is upon a question of jurisdiction over
matters within the legislative authority of Ontario, and does not
affect or enlarge the general jurisdiction of magistrates under the
criminal law. See section 653 of the Code.
Authority of magistrate to act between date of order-in-
council appointing him and his formal commission. Held, ap-
pointment effective from the date of order-in-council appointing
him. R. V. Reedy, (1908) 14 C. C. C. 256.
An authority given by the statute to two cannot be executed
by one justice, but if given to one justice it may be executed by
any greater number. If the complaint be directed to be made to
any justice, though the statute should require the final determina-
tion to be by two, the complaint is well lodged before one. Foley,
8th ed., 38. See section 708 of the Code and R. v: Laughton, 20
C. C. C. 30, 22 M. R. 520.
The calling of a magistrate sitting in case as a witness does
not of itself disqualify him from further acting in the case. R. v.
Sproule, 14 0. R. 375.
Where the magistrate himself was called as a witness for the
defendant and refused to be sworn, if advantage is sought to be
taken of such refusal, it should be made apparent to the Court that
he was required bond fide as a witness; that he could give evidence
material upon the question it was proposed to interrogate him
upon, and that the party complaining has been prejudiced by the
refusal. Ex parte Flanagan, 2 C. C. C. 513, 34 X. B. R. 326.
All the cases on the question as to whether a Judge or juror
can properly be a witness in a case he is trying will be found in
R. V. Petrie, 20 0. R. 317, and see Ex parte Hehert, 4 C. C. C. 153.
The Court refused to quash a conviction under the Canada
Temperance Act, 1878, on the ground that one of the convicting
magistrates had not the necessary property qualification, the de-
fendant not having negatived the magistrate being a person within
the term of the exception or proviso of sec. 7, R. S. 0. 1877, ch.
71'; R. V. Hodgins, 12 0. E. 367.
DISQUALIFICATION OF JUSTICES. 77
Where a police magistrate appointed under E. S. 0. 1887, ch.
72, is paid a salary by the municipality instead of by fees, such
salary being in no way dependent on any fines which he may im-
pose, he has no pecuniary interest in the fines and so is not
thereby disqualified. Semhh, that in such a case there would
have been no disqualification at common law. R. v. Fleming, 37
0. E. 132.
Disqualification by Eeason of Interest or Bias.
Magistrates and justices of the peace should not take any part,
in any way, in any case in which they have any personal interest
of any kind whatsoever, whether pecuniary or otherwise, no matter
how small that interest may be.
No magistrate, however duly authorized in all other respects,
can act judicially in a case wherein he is himself a part}^ The
plain principle of justice that no one can be a judge in his own
cause, pervades every branch of the law,, and is as ancient as the
law itself. Co. Litt. 141A. This is so fundamental a maxim
as not to be overruled by any prescription. Lord Coke and Lord
Holt both go so far as to queistion whether even an Act of Parlia-
ment has power to ordain that the same person shall be both party
and Judge. Foley, 8th ed., 44.
The Lord Chancellor had granted relief sought by a company
in which he was a shareholder. The House of Lords held that
he was disqualified on the ground of interest from sitting as a
Judge in the cause, and that his decree must be reversed, but it
was at the same time decided to be merely voidable and not void.
Dimes v. Grand Junction Canal Co., 3 H. of L. 759-785.
If one of the justices sitting is interested it will invalidate the
decision of all the justices even though a majority may have been
in favour of the decision without counting the vote of the in-
terested party.
A disqualifying interest does not apply only to a pecuniary in-
terest, but if the interest is not pecuniary it must be a substantial
interest.
Xo matter how small the pecuniar}- interast in the subject
matter is, the justice is disqualified, likewise if he has a real bias
in favour of one of the parties; but the mere possibility of bias in
favour of one of the parties does not of itself avoid a justice's
decision. E. v. J. J. Dublin, [1894] 2 Q. B. Ir. 527 ; E. v. Meyer,
78 DISQUALIFICATION OF JUSTICES.
1 Q. B. D. 173 ; R. v. Rand, L. K. 1 Q. B. 230 ; R. v. Justices of
Sunderland, [1901] 2 K. B. 357.
If a justice has such an interest as might give him a real bias
in the matter he should not only take no part in the decision
which would render it void, but should entirely withdraw during
the whole case. Ibid.
On all occasions the Court of King's Bench has expressed its
strong disapprobation of justices sitting in judgment upon mat-
ters in which they are eiiJier directly or indirectly interested.
Not only should persons interested in a decision take no part
in it, but they should also avodd giving any ground for the belief
that they influence others in arriving at a decision. Upon the
trial of a parish appeal one of the justices, who was a rated in-
habitant of the appellant parish, was on the bench during the
hearing, and in tlie course of the proceedings referred the chair-
man of the quarter sessions to some of the documents put in evi-
dence. Upon an observation being made that he was interested, he
stated that he should take no part in the decision, but he remained
in Court until the judgment, which was in favour of the appel-
lants, was given. It was sworn that he did not vote or give any
opinion upon the question, or influence the decision of the other
justices, but the order of sessions was held to be invalid by reason
of his presence and interference. R. v. J. J. Suffolk, 18 Q. B, 416,
and see R. v. J.J. Hereford, 2 D, & L. 500.
The Court will not enter into a discussion as to the extent of
the influence exercised by an interested party, and it is no answer
to the objection that there was a majority in favour of the judg-
ment without counting his vote, nor that he withdrew before the
decision, if he appears to have joined in discussing the matter with
the other magistrates. R. v. J. J. Hertford, 6 Q. B. 753. See
also R. V. Budden, 60 J. P. 160.
Whenever there is a real likelihood that the Judge would, from
kindred, or any other causes, have a bias in favour of one of the
parties, it would be very wrong for him to act, and we are not to
be understood to say that, where there is a real bias of this sort,
this Court will not interfere. Blackburn, J., in R. v. Rand, L. E.
1 Q. B. 230.
Where there were uncontradicted affidavits that the magis-
trate had stated that he would convict any parties charged before
him with selling liquor, whether the evidence proved it or not, if
he believed them to be guilty, it was held that a disqualifying
DISQUALIFICATION OF JUSTICES. 79
bias was shown, and a conviction by him on such a charge was
quashed: R. Y. Band, 22 C. 0. O. 147.
Where a Judge is a member of a small class of privileged per-
sons, he cannot adjudicate in proceedings taken against a person
for an infringement of the privileges of such a class. R. v. Hug-
gins, [1895] 1 Q. B. 563.
A party who has no knowledge of the interest at the time of
the inquiry does not waive the objection on that ground by ap-
pearing and taking part in the proceedings. R. v. Sheriff of
Warwickshire, 3 W. E. 164, and see Ex parte McEwen, (1906)
12 C. C. C. 97.
But if a party in a criminal proceeding, knowing the interest,
consents to the interested magistrate acting, he cannot afterwards
raise any objection upon this ground. R. v. Cheltenham Com-
missioners, 1 Q. B. 467; R. v. J. J. Antrim, (1895) 2 Ir. E. 603.
An order for prohibition was granted against two justices of
the peace on the ground that they were disqualified from adjudi-
cating on a charge for a violation of the Canada Temperance Act,
by reason of their being associated with a Temperance Alliance, of
which the president was the party prosecuting, and which associ-
ation benefited by any fine imposed. Daignault v. Emerson, 5
C. C. 0. 534. But see R. y. Woodroof, 20 0. C. C. 17.
A magistrate who is engaged in the same kind of a business as
a trader prosecuted under a transient trader's license law is thereby
disqualified from adjudicating on the charge. Falconbeidge,
J., who delivered the judgment of the Divisional Cofurt, said:
" It is only necessary to read the affidavit of the convicting magis-
trate to see that he was disqualified to sit or adjudicate on this
case by reason of his being engaged in the same kind of business
as the defendant. . . . We are not going to weigh in nice
scales the extent to which the mayor and the defendant are rivals
in trade, nor are we bound by the mayor's statement that he does
not consider that the defendant is conducting a business in oppo-
sition to his, the mayor's and convicting magistrate's. R. v.
Leeson, (1901) 5 C. C. C. 184.
The defendant was convicted before a stipendiary magistrate,
presiding in the town of Truro, of selling intoxicating liquors,
contrary to law. The magistrate was a ratepayer of the town,
and received a fixed salary as stipendiary, payable out of the
funds of the town, to which half the penalty imposed became pay-
able. Held, that the magistrate was disqualified by interest from
acting in the matter. Tupper v. Murphy, 3 E. & G. N. S. 173.
80 DISQUALIFICATION OF JUSTICES.
This case can no longer be considered good law. See R. v.
EolyoTce, 21 C. C. C. 422; R. v. Such Sin, 16 C. 0. 0. 266, 20 M.
R. 720; Ex parte McCoy, 1 C. C. C. 410, and Ex parte WUson, 15
C. 0. G. 264.
A magistrate is not disqualified from hearing an information
under the Summary Convictions Act by reason of the defendant's
wife being the widow of a deceased son of the magistrate. Ex
parte Wallace, 26 N. B. E. 593.
A conviction for cruelty to animals was quashed because one
of the justices was the father of the complainant. In re Holman,
3 E. & C. N. S. E. 375.
In an assault case the complainant was the daughter of the
convicting justice. Held, improper for the justice to sit and iry
the ease, the complainant being his daughter, and that this was a
good ground for quashing the conviction. R. v. Lang ford, 15 0.
B. 52.
A magistrate is incompetent under the " Canada Temperance
Act," if his grandfather is a brother of the defendant's great
grandmother. Ex parte Laughley, 28 N. B. R. 656.
The cases relating to disqualification of a justice of tlie peace
or magistrate by reason of interest, are referred to fully in R. v.
Klemp, 10 0. E. 143.
It is not a ground for disqualification that the justice and
the counsel who conducted the prosecution are partners in business
as attorneys, provided, they have no joint interest in the fees"
earned by the counsel in the prosecution, or in any fees payable
to the justicfi 6n tne trial of the information. R. v. Grimmer,
25 N. B. E. iW. ~" ~
On a charge of a second offence of selling liquor without a
license, the magistrate is not disqualified from trying the case
because of the previous conviction alleged having been made by
him: R. v. Reid, 14 C. C. C. 329; R. v. Wellman, 14 C. C. 0. 335.
Two of the four convicting justices were licensed auctioneers
for the county and persisted in sitting after objection taken on
account of the interest, though the case might have been disposed
of by one justice. Held, that they were disqualified, and the con-
viction was quashed and they were ordered to pay the costs, R.
V. Chapman, 1 0. E. 582.
See also Campbell v. Mcintosh, (1873) 1 P. E. I. E. 423: R.
V. Hart, 2 B. C. E. 264; Ex parte Scribner, 32 X. B. E. 175: R.
DISQUALIFICATION OP JUSTICES. 81
V. Major, 29 F. S. E. 373; R. v. Batson, 12 C. O. C. 62; Ex
pa/rte McGleave, (1908) 14 C. C. C. 18; Ex parte Gallagher,
(IdOS) 14 0. C. C. 38; R. v. LorHmer, (1909) 14 C. 0. C. 430.
To invalidate a conviction on the ground of bias in the con-
victing magistrate it is not necessary that actual bias should be
proved, and the conviction will be quashed if the facts justify a
reasonable apprehension of bias. If the accused is aware of ibhe
disqualifying circumstances at the time of the hearing before the
magistrate he should take objection then to the magistrate acting.,
Where the prosecutor is the magistrate's father and the stat-
ute under which the prosecution is brought entitles the prosecutor
to a share of any fine imposed, the justice is disqualified from ad-
judicating in the case. Conviction quashed. Meredith, C.J. : " It
is of the utmost importance I think, in a comparatively new
country, such as this, where the magistrates are for the most part
untrained men, and in many cases having unnecessarily but a limi-
ted knowledge of the law which they are called upon to adminis-
ter, that the supervising power of the Court over their decisions
should be fully exercised to prevent adjudications being given
effect to where they are at variance with the fundamental prin-
ciples upon which our law is and must be administered in order
to command the respect of the community, or where the constitu-
tion of the tribunals by which they are pronounced is such as to
create a well founded suspicion of unfairness." R. v. Steele,
(1895) 2 C. C. 0. 433.
In R. V. Steele, Meredith, C.J., quotes and reviews nearly all
of the leading English cases upon the subject of interest and bias.
Litigation hona fide pending between the accused and the mag-
istrate gives rise to a presumption of bias at the time. Ex parte
Vaigle, 18 C. C. C. 211.
A justice of the peace is not disqualified from taking an in-
formation because the informant is his second cousin: Campbell
V. Walsh, 18 C. C. 0. 304.
The connection of the magistrate with a society which sup-
plied funds, part of which were used to make the purchase upon
which the prosecution of illegal sale of liquor was based, because of
his being an honorary member of the society, but not entitled
to take any part in its affaris, is not a ground of disqualification.
R. V. Herrell, (1898) 1 C. C. C. 510. See also Leeson v. General
Council of Medical Education, (1889) 43 Ch. D. 366; Allinson v.
c.c.p. — 6
83 QUESTIONS OF TITLE TO LAND.
General Council, [1894] 1 Q. B. 750; Ex parte Van Buskirk, 13
C. 0. C. 234.
Where the magistrate is interested the proper course to take
is to apply for a writ of prohibition. R. v. Brown, 16 0. E. 41.
A writ of certiorari will also lie where there is a real bias.
B. V. Justices of Sunderland, [1901] 2 K. B. 357; 22. v. Hain, 12
T. L. E. 323.
The objection, if known to the accused, should be taken at the
outget of the case. If he goes on and does not take the objection
it will be waived. Wakefield v. West Midland & 0. ky., 10 U^
162; R. Y. J. J. Antrim., [1895] 2 Q. B. Ir. 603 ; R. v. Steele,
supra. See also R. v. Stone, 23 0. E. 46; R. v. Clarke, 20 0. E.
642.
See section 578 of the Code forbidding certain persons from
sitting at the trial of cases under section 501 for intimidation.
Ouster of Jurisdiction.
Questions of Title to Land.
709. No justice shall hear and determine any case of assault or
battery in which any question arises as to the title to any lands, tenements,
hereditaments or any interest therein or accruing therefrom, or as to any
bankruptcy, or insolvency, or any execution under the process of any Court
of Justice.
The justices' jurisdiction is only to enquire into the good faith
of the parties alleging title and they must not convict where a real
question as to the right to property is raised between the parties.
Their jurisdiction is at an end, and the question of right must
be settled by a higher tribunal. By convicting, the justices would
be settling a question of property conclusively and without remedy
if their decision happened to be wrong. Blackburn, J., in R. v.
Stimpson, 4 B. & S. 301 ; R. v. Davidson, 45 TJ. C. E. 91.
It has always been held as a maxim that where the title to
real property is in question the exercise of a summary jurisdiction
by justices of the peace is ousted. This principle was not founded
upon any legislative provision, but is a qualification which the law
itself raises in the execution of penal statutes, and is always im-
plied in this c^instruction, and so rigid is this rule that even where
a statute allows the accused to go into the question of title, he
is not obliged to do so and may object to the jurisdiction of the
justices. R. V. Burnaby, 1 Salk. 181 ; Johnston v. Meldon, 30
L. E. Ir. 15: R. v. Cridland, 7 El. & Bl. 853.
QUESTIONS OF TITLE TO LAND. 83
When a bona fide claim is made which is not obscure or im-
possible, the justices have no jurisdiction and ought not to con-
vict or make any further inquiry. Scott v. BaHng, 18 Oox 128;
R. V. Taylor, 8 TJ. C. E. 257; R. v. Cridland, supra.
The jurisdiction of a justice is not to be ousted by a mere
pretence of title or even by a bona fide claim of right which in
law cannot exist. R. v. Wrottesley, 1 B. & Ad. 648; Simpson
V. Wells, 41 L. J. M. 0. 105 ; Hargreaves v. Di'ddams, 44 L. J. M.
C. 178.
If the justices believe there is a bona fide question of title
they have no jurisdiction. Legg v. Pardoe, 9 C. B, N. S. 2S9, 30
L. J. M. C. 108.
Where the matter is doubtful they should stop their proceed-
ings as they cannot give themselves jurisdiction by a false decision.
R. V. Nunneley, E. B. & E. 852 ; R. v. Stimpson, 4 B. & S. 301.
Where, in the prosecution for an injury done to grown trees to
the value of twenty-five cents, the defendant set up and proved
a bona fide claim of title, the Court held that the jurisdiction of
the justice was ousted. R. v. O'Brien, 5 Q. L. E. 161.
Where a justice proceeded with a charge of destroying a line
fence. Held, the magistrate should have stopped the trial as
soon afi he found that the title to land was in question. Ex parte
Roy, 12 C. C. C. 533.
If the facts lead to one conclusion only and that against the
defendant, and there is no contradictory evidence, then there is no
bona fide question of title and the jurisdiction will not be ousted.
Moberley v. CoUingwood, 25 0. B. 625.
A claim of title, to oust the jurisdiction of the magistrate in
a case of trespass, must be a claim of title in the party charged,
and not a mere allegation of a jus tertii or of a defect in the
claimant's title: R. v. Ha/rron, 20 C. 0. C. 72,
When the defendant was estopped from denying the title of
plaintiff, or from claiming title in himself, there is no bona fide
claim of title and jurisdiction is not ousted. BanJc of Montreal v.
Gilchrist, 6 A. E. 659 ; Wichham v. Lee, 12 Q. B. 521.
See also R. v. Malcolm, (1883) 2 0. E. 511, and R. v. Mc-
Donald, 12 0. E. 381 ; R. v. Magistrates of Ballycastle, 9 L. T. E.
?^. S. 88 ; Watkins v. Major, 33 L. T. E. N. S. 352 ; R. v. Lacour-
siere, 8 M. E. 302 ; RobicJiaud v. LeBlanc, (1898) 34 C. L. J. 324
(N.B.) ; Paley, 8th ed., 157-165.
84 OUSTER OF JURISDICTION.
See Part VIII. of the Code, section 510, as to mischief, under
which is included the wilful destruction or damage to any pro-
perty. The question of title is liable to arise in these cases. Sec-
tion 539 deals with cases of injuries to property not already pro-
vided for in the preceding sections. A limitation to proceedings
under this section is provided by section 540 as follows:
540. Nothing in the last preceding section ext«»t>d8 to (o) any case
where the person acted under a fair and reasonable supposition that he had
a right to do the act complained of; or (6) any trespass not being wilful
and malicious committed in hunting or fishing, or in the pursuit of game.
Under this section the magistrate's jurisdiction in respect of a
charge of wilful injury to property is not ousted unless the act
was done under a fair and reasonable supposition of right, and the
magistrate has jurisdiction to summarily try the charge notwith-
standing the mere belief of the accused that he had a right to do
the act complained of.
What the sections require in order to oust the jurisdiction of
the magistrate is that the act shall be done under a fair and rea-
sonable supposition of right. Whether such supposition is war-
ranted is for the magistrate to determine upon the evidence.
Lister, J.A., at p. 32, in R. v. Davy, 4 C. C. C. 28.
I quite agree that magistrates cannot give themselves jurisdic-
tion! or retain jurisdiction by finding a particular fact one way,
if the evidence is clearly the other way. Cockburn, C.J., in
White V. Fea^t, (1872) L. E. 7 Q. B. 353^.
See also Denny v. Thwaites, (1876) 2 Ex. D. 21; Reece v.
Maier, (18S2) 8 Q. B. D. 626; Ex parte Vaughan, (1866) L. E.
2 Q. B. 114.
Associate Justices and Priority.
Where a single justice of the peace has authority' to try a
charge he may ask other justices to sit with him and a conviction
made by all of them jointly is valid. E. v. Leconte, 11 C. 0. C.
41. See section 708 of the Code.
All the justices in each county are equal in authority; but, as
it wwild be contrary to the public interest as well as indecent that
there should be a contest between different justices, we must lay
down the rule that, when a party charged comes, or is brought
before, a magistrate in obedience to a summons or warrant, no
other magistrate shall interfere in the investigation of, or adjudi-
ASSOCIATE JUSTICES, 85
cation, -apoiii the charge, except at his request. Armour^ C.J., in
B, V. McEae, 2 C. C. C. 49, at p. 51. It was -held in this case
that a conviction by the justice who summoned the accused and
heard the charge ^vill be upheld although three other justices at-
tended the hearing and purported to dismiss the charge, if these
justices sat without the request or consent of the summoning jus-
tice. There was evidence also that the other justices were pre-
sent at the request of the defendant.
While the general principles gweming in a competition
amongst justices as to authority are expressed in the judgment of
Armour, C.J. {R. v. McRae), quoted above, it may be added that
it is laid down that the jurisdiction in any particular case at-
taches in the first set of justices, duly authorized, who have pos-
session and cognizance of the case to the exclusion of the separate
jurisdiction of all others. So that the acts of any other, except
in conjunction with the first, are not only void, but such a breach
of law as subjects them to indictment. R. v. Sainsbwry, 4 T. E.
456; R. V. Great MaHow, 2 East. 244; R. v. Bloom, 15 D. L. E.
484, 22 C. C. C. 205.
As will be seen later in discussing procedure under the differ-
ent sections of tlie Code relating to the issuing of process, there
are cases where justices other than those who issued the process,
or were first seized of the case, may act. See sec. 708 of the Code.
In prosecutions under the Nova Scotia Liquor License Act or the
Canada Temperance Act, the two justices should both be present
when the information is laid and the summons granted, but only
one need sign the information, and the conviction should shew
on its face the facts necessarj" to give jurisdiction to the one not
signing. R. v. McKenzie, 23 N. S. E. 6; R. v. Brown, 23 N. S.
E. 21; R. V. Ettinger, 3 C. C. C. 387.
A justice of the peace acting in the illness, or absence, or at
the request, of a police magistrate, should be designated as so act-
ing in warrants or oiher process, otherwise the latter will be
invalid. A warrant signed by a justice of the peace so acting,
in which he is described as " police magistrate," is void, R. v.
Lyons, 2 C. C. C. 218.
The " absence " intended by the Act is not actual absence
from the jurisdiction or even from the place of trial, but includes
inability to attend to the business of the Court such as was proved
in this case: Ex parte Cormier, 17 C. C. C. 179.
The initials "J. P." following the signature of the person issu-
ing a warrant do not describe him with sufficient fullness as a
86 IBREGULAR PROCEDURE,
justice of the peace for the city or county in which the warrant
purports to be issued. R. v. Lyons, supra. See also E. v. Hong
Lee, 10 W. L. R. 376, 15 C. C. C. 39; R. v. Duggan, 21 O. L. T.
Occ. X. 35.
Where evidence on a preliminary inquiry is commenced before
one justice of the peace and finished before two justices, a com-
mittal by the two justices is.irregidar unless both have heard all
the evidence. R. v. Nunn, 2 C. C. C. 429; Re Ouerin, (1888) 16
Cox C. C. 596 ; and see R. v. MUne, 25 O. P. 94.
Sub-section 3 of sec. 708 of the Code does not apply to the
preliminary hearings of indictable oiffences, and the magistrate,
who has issued the summons or warrant for an indictable offence,
must proceed with the preliminary- hearing, and no other magis-
trate may take the matter up and hold the hearing, even with the
consent of the first magistrate, except when authorized by statute
in special circumstances, such as illness or absence of the first
magistrate. Re Holman & Rea (No. 2), 21 C. C. C. 11.
A verbal conviction by two justices cannot be reversed, after
one has gone away, by one of them and another justice, but either
of two convicting justices has a right to change his mind before the
conviction is drawn up, the effect then being that there is no con-
viction, and it would be possible to proceed again for the same
offence. Jones v. Williams, 36 L. T. N. S. 559, 46 L. J. M. C.
270.
Where more than one justice is present the decision is that of
the majority. The chairman has no casting vote. If the justices are
equally divided,, there can be no adjudication, and the ca*:e may
be again heard on a fresh information or complaint, or adjourned
to the next sitting, when it can be reheard with the assistance of
other justices. Paley, 8th ed. 125; Kinnis v. Graves, 19 Cox 42;
Ex parte Evans, [1894] A. C. 16.
After the justices, or a justice, have once given judgment, and
after the Court is closed, they have no power to re-open the in-
quiry. Their judgment can be appealed from, or moved against
by certiorari.
Locality of Crime or Offence.
All crime is local, and the jurisdiction over the crime belongs
to the countrj' where the crime is committed. Macleod v. New
South Wales, [1891] A. C. 455. See R. v. Bhjthe, 1 C. C. C. at
p. 284.
LOCALITY OF CRIME OR OFFENCE. 87
The offence of having in htis , possession a dog which has wor-
ried, injured and destroyed sheep is committed where the dog is
kept, and not where the sheep have been worried, injured or de-
stroyed. R. V. Duering, 5 C. C. C^. 135,
A magistrate may hold, a preliminary inquiry in respect of an
indictable offence committed in the same Prwince outside of his
territorial jurisdiction if the accused is, or is expected to be, within
the limits over which such magistrate has jurisdiction, or resicL^
or is suspected to reside wathm such limits. R. v. BurTce, 5 0. 0. CT
Sn. See s^. Bby and 677 of the Code., — '
If an accused person is charged with having committed an in-
dictable offence within the limits over which a justice has jurisdic-
tion, the justice may issue a warrant or summons. Sec. 653 (&)
of the Code.
A magistrate's jurisdiction to make a summary conviction must
appear on the, face of the proceedings, or he will be presumed to
have acted without jurisdiction. The conviction did not shew
where the offence had been committed, or that it had been com-
mitted,in Manitoba. Johnston v, O'Reilly, 12 C. 0. C. 219.
See, however, R. v. McGregor, 2 C, C. 0. 410, where it was
held, on the proper interpretation of section 889 (now 1124) of
the Code, that the Court might go behind the conviction and look
at the depositions and back to the warrant referred to therein, to
find a statement of the locality of the crime sufficient to uphold
the conviction.
Where the information upon which a summary conviction is
based charges that the offence was committed at a named locality
stated to be within the province for which the magistrate has
jurisdiction, a conviction in the same terms will be presumed to
have been made for an offence wthin the same territorial jurisdic-
tion, although no evidence was given to shew that the locality
specified is within the limits, of that province. Application by the
defendant company to quash a conviction for an offence under s. 6
of the Lord's Day Act, dismissed. R. v, (7. P. Railway Co.,
(1908) 14 C. 0. C. 1.
Where the accused was charged with making, circulating and
publishing false statements in reference to the financial status of a
company, and these statements were mailed from a place in Ontario
to parties in Montreal, the offence, though commenced in Ontario,
is completed in Quebec by the delivery of the letters to the parties
to whom they were addressed. The Courts of Quebec were held to
have jurisdiction to try the accused if he has been duly committed
88 LOCALITY OP CEIME OR OFFENCE.
for trial by a magistrate of the district. R. v, Gillespie (No. 2),
(1898) 2 C. C. O. 309. See R. v. Gvrdwood, 2 East P. C. 1116;
R. y. Esser, 2 East P. C. 1125; R. v. Burdett, 4 B. & Aid. 95. In
these cases it was held that the accused was rightly committed and
tried in the judicial district Where the letters had been addressed
and delivered to the parties threatened, although written and
posted in another district. And see R. v. Jones, 1 Den. 558.
In Fournier v. Atty. Gen., 17 C. C. 0. 108, it was held that a
newspaper editoT might be proceeded against at Quebec for a
scandalous contempt against the judges holding court there, al-
though the publications complained of took place at Montreal.
Where the offence was committed in the county of Middlesex,
in wiiich ocmnty the accused resided, and proceedings against them
were ijommenced in Toronto, and the accused were arrested in
Londo;^ (which is in Middlesex) and brought to Toronto for trial.
Held, they could not be tried in Toronto, notwithstanding provi-
sions of ss. 577 and 653 of the Code. R. v. O'Gorman et ah, 18
0. L. E. 427.
When once the Parliament of Canada has given jurisdiction
to a provincial Court, whether superior or inferior, or to a judicial
officer to perform judicial functions in the adjudicating of matters
over which the Parliament of Canada has exclusive jurisdiction,
no provincial legislation, in our opinion, is necessary in order to
enable effect to be given to such parliamentary enactments. Sedge-
wick, J., in Re Vancini (No. 2), (1904) 8 C. C. C. 228, 34 S. C.
R. 621.
Accused was charged with shopbreaking and theft from pre-
mises situate at the town of Sydney in Nova Scotia. He was
arrested in Halifax and was brought before, and consented to be
tried summarily by, the Stipendiary Magistrate for the City of
Halifax. He pleaded guilty, was convicted and sentenced to five
years in the penitentiary at Dorchester.
The convict applied to a Judge of the Supreme Court of New
Brunswick (in which province Dorchester is situated) for a writ
of habeas corpus. This application was referred to the full Court,
and the writ was refused. The Supreme Court of N. B. held that
the Halifax stipendiary had jurisdiction, while acting within the
local limits of his jurisdiction, to summarily try the prisoner watli
his consent (Code ss. 771, 777), for an offence committed outside
of his territorial jurisdiction, but in the same Province. Ex parte
Seehy, (1908) 13 0. C. C. 259.
JUEISDICTION OF COURTS. g9
Seelej then applied to Mr. Justice Girouard of the Supreme
Court of Canada for a writ of habeas corpus; this application was
refused, and the prisoner then appealed to the Supreme Court
from this refusal.
The Supreme Court of Canada affirmed the judgment of the
Supreme Court of New Brunswick hy dismissing the application.
The Chief Justice, Sir Charles Fitzpatrick, in the concluding para-
graph of his judgment, says. " I construe sections 554, 557 and
785 (now in Revised Code (1906), ss. 653, 665 and 777) taken to-
gether to mean that, when an offence is committed within the
Umits of a Frovince, any presence, however transitory, of the ac-
cused in any part of that Province, will justify the exercise of ~as
full and complete jurisdiction as if the offence was committed
where the offender is apprehended, leaving the magistrate a dis"-
cretionary power to send the prisoner for further inquiry, or for
trial 'before the .lustice navmg .lurififllCtlftti over tne locus wE^e
the oflience was committed." Ue }:^eeley, (1908) 14 C. C. C. 370,
41 y. C. K 5.
On matters of jurisdiction, see the following sections of the
Code: 576, 577 et seq., Part XI., and s. 653, Part XIII.
90 ACTIONS AGAINST JUSTICES.
CHAPTER IV.
Bespoxsibility of Justices and Remedies against Them.
Magistrates and justices of the peace ma}' render themselves
liable in damages and to criminal proceedings if they exercise the
functions of their office illegally.
The general rule is that a justice, like other judges, is not liable
for any mistake, or error of judgment, or for anything he does
judicially when acting within his jurisdiction, although he may be
wrong. Gordon v. Denison, 24 0. R. 576, 22 A. R. 315, and cases
there cited. See also Re McMicken, 21 C. C. C. 334.
In DawTcins v. Povlet, L. R. 5 Q. B. 94, it was held that an ac-
tion would not lie against a Couniy Court Judge or a military
officer for words maliciously and not bona fide spoken by them, in
the course of the discharge of their duty.
It would seem, from the principle of recent cases in England,
that a justice cannot be sued for acts done maliciously in the
course of dealing with a matter over which he has jurisdiction.
Scott V. Stansfield, L. R. 3 Ex. 220. See also Garner v. Coleman,
19 C. P. 106; Agnew v. Stuart, 21 IT. 0. R. 396. But now in
many of the Provinces and in England since 11 & 12 Yic, c. 44,
this is no longer the law. See next page.
When a justice acts without jurisdiction, or in excess of it, he
becomes liable to an action whether he be acting judicially or
ministerially. Crepps v. Burden, 2 Cowp. 640; 1 Smith's L. C.
(11th Ed.) 651.
But when means of knowledge, as distinguished from know-
ledge actual or imputed, is relied upon to sustain an action against
a justice actng judicially for an act done without jurisdiction, the
action will lie only when he has acted maliciously and without rea-
sonable and probable cause. Johnston v. Meldon, 30 L. R. Ir. 15.
Where a justice of the peace acts judicially in a matter in
which by law he has jurisdiction and his proceedings appear to be
good upon the face of them, no action will lie against him, or, if
an action is brought, the proceedings themselves will be a sufficient
justification. Brittain v. Kinnaird, 1 B. & B. 432; Fawcett v.
FowJis, 7 B. & C. 394.
vexatious actions against justices. 91
Vexatious Actions Against Justices.
In tlie Statutes of the Provinces of Ontario, Quebec, Nova
Scotia and New Brunswick, relating to the protection of justices,
which are summarized in Chapter I., and which are founded upon
the English Statute, 11 & 12 Vic, c. 44, it is provided that, in ac-
tions brought against police magistrates or justices of the peace
for any act done by them in the execution of their duties with
respect to matters within their jurisdiction, it shall be expressly
alleged in the statement of claim that the act was done maliciously
and without reasonable or probable cause, and, if at the trial the
plaintiff fails to prove such allegation, he shall be non-suited or a
verdict given for the defendant.
The English Statute, above referred to, is also in force in
Manitoba, where the Legislature has not dealt with the subject.
For any act done by justices in matters in which by law they
have not jurisdiction, or in w^ich they have exceeded their juris-
diction, or for any act done under a conviction, order, or warrant
issued by them in such matter, any person injured may maintain
an action against the justices as he might have done before the
passing of the Act, without making any allegation in his statement
of claim that the act complained of was done maliciously and with-
out reasonable and probable cause.
If one justice makes a conviction or order and another justice
in good faith issues and signs a warrant of distress or commitment
thereunder, the action, if any, must be against the justice w^o
made the conviction or order.
In case any justice of the peace has granted a warrant of dis-
tress or commitment upon a conviction or order which either
before or after the granting of the warrant has been confirmed
upon appeal, it is provided that no action can be brought against
the justice by reason of any defect in the conviction or order for
anything done under the warrant.
No action can be brought for anything done under a conviction
in a matter of which by law the justice has not jurisdiction or in
which he shall have exceeded his jurisdiction until the conviction
or order has been quashed, either on appeal or on application to
the High Court.
It has been held that by this provision no action can be brought
for anything done under a conviction so long as it has not been
quashed and is still in force, whether there was jurisdiction to
92 ACTIONS AGAINST JUSTICES.
make the conviction or not. But the magistrate is not protected
if the conviction does not justify what has been done under it.
Arscott V. LUley, 11 0. E. 285, 14 A. R. 2S3.
The discharge of a prisoner on habeas corpus is not a quashing
of his conviction under the statute. Hunter v, OilTcison, 7 0.
R. 735.
iNTeither is the amending of a conviction by the Sessions on
appeal striking out the award of hard labour a quashing of the
conviction. McLellan v. McKinnon, 1 0. E. 219.
In an action against magistrates, it was ascertained that the
conviction was not under seal. Held, that it was not necessary
that the conviction should have been quashed before action.
Haacke v. Adamson, 14 G. P. 201, and McDonald v. Stuckey, 31
U. C. R. 577, followed. Bond v. Conmee, 15 0. E. 716, 16 A.
E. 398.
When a warrant was improperly endorsed, held, that it was
not necessary to quash the conviction before action brought, as
the arrest was not anything done under a conviction or order
within E. S. 0. 1887, c. 73, s. 4. Jones v. Grace, 17 0. E. 681.
As to whether a search warrant must be quashed before an action
can be brought against a magistrate in respect of its enforcement,
see Johnston v. McDougall, 17 C. C. C. 58.
If an action of trespass be brought against a magistrate for
convicting a person and causing him to be imprisoned in a case
where the magistrate had jurisdiction, the plaintiff must be non-
suited if a valid and subsisting conviction be proved and adduced.
Stamp v. Sweetland, 14 L. J. M. C. 184.
If a justice exceeds the authority the law gives him in his
ministerial acts, lie thereby subjects himself to an action, e.g., if
he commits a prisoner for re-examination for an unreasonable
time, although he do so from no improper motive, he is liable to
an action for false imprisonment. Davis v. Copper, 10 B. & 0. 28.
If a justice maliciously commits a man for a supposed crime
when there has in fact been no accusation against him, he is liable
to an action for trespass for false imprisonment. Morgan v. Hughes,
2 T. E. 225; but if he commits him for a reasonable time, although
the statute under which he is acting gives him no authority to do
so, he is not liable to an action, if authority so to commit is given
to justices by another statute. Gelan v. Hall, 27 L. J. M. 0. 78.
If the justice acts without jurisdiction, or in excess of it, he is
liable whether his acts are judicial or ministerial. A mere irregu-
larity, or erroneous judgment, will not be an excess of jurisdiction.
ACTIONS AGAINST JUSTICES. 93
There must be an act done which there is no jurisdiction to do.
ParJcer v. Etter, 33 N. S. E. 52.
After a conviction by a magistrate is quashed, an action on the
case will not lie against him, unless the acts complained of be
proved to have been committed by him without any reasonable or
probable cause and maliciously, and the q,uestion of malice must
be left to the jury. Burney v. Gorham, 1 C. P. 358.
If a magistrate causes a party to be wrongfully imprisoned
without any reasonable cause until he gives his note to obtain a
discharge, the magistrate is liable in trespass. Brennan v. Hatelie,
6 0. S. 308.
A justice of the peace who issues a warrant without jurisdic-
tion, as on an insufficient information, is liable to an action for
trespass for assault and false imprisonment, and the question of
reasonable and probable cause cannot arise in such a case as this,
but only in a case where the justice has jurisdiction. Whittier v.
Diblee, 15 N. B. E. 243.
In an action for malicious prosecution, it appeared that the
defendant was a justice of the peace and as such acquired his
knowledge of the circumstances on which he preferred the charge
against the plaintiff. Held, clearly no ground for requiring that
express malice should be proved against him. Orr v. Spooner, 19
U. 0. E. 601.
It has been held that the first and second sections of 11 & 12
Vic, c. 44, which our statutes have followed, should be read to-
gether, and that section 2 only applies to those cases where the
particular proceeding in respect of which an action is brought
against a justice is in itself an excess of jurisdiction. For in-
stance, when a justice, to an otherwise good conviction, added an
illegal alternative that, in default of payment of the penalty and
costs or sufficient distress, the convicted person should be put in
stocks, it was held that, if this alternative had been enforced,
the justice would not have been entitled to the benefit of section 1.
Barton v. BricTcndl, 13 Q. B. 393.
So where justices convicted a man, under 6 & 7 Vic, c OS, for
illegally performing stage plays, the conviction contained no ad-
judication of costs, but the warrant of distress recited the convic-
tion as if it did, and the defendant, before the issue of the warrant
of distress, was detained to enforce payment of the penalty, which
afterwards was levied, together with the costs, under the warrant,
held that, whether they had power to adjudicate costs or not, they
94 ACTIONS AGAINST JUSTICES.
had not done so, and that the imprisonment and distress were an
" excess of jurisdiction " within section 2. Learif v. Patrick, 15
Q. B. 266, 19 L. J. M. C. 211.
The protection of a magistrate depends not on general juris-
diction over the subject matter, but over the particular matter or
individual. Therefore, where a justice issued his warrant to ap-
prehend a party to answer a charge of assault upon a deposition
taken in the absence of the justice, he not at any time seeing,
examining or hearing the deponent, he was held liable to an action
for trespass, although he otherwise had jurisdiction over the
charge. Caudle v. Seymour, 1 Q. B. 889.
A magistrate has no right to detain a person, who is well
known, to answer a charge of misdemeanour, verbally intimated
to the magistrate, but without a regular information. R. v. Birnie,
1 Mood. & E. 160, 5 C. & P. 206.
A commitment for part of the sum adjudged by the conviction
to be paid is not authorized by the Summary Conviction Act and
is illegal. The plaintiff was convicted under the Canada Temper-
ance Act, and adjudged to ^pay a fine and costs, to be levied by
distress, if not paid forthwith, and, in default of sufficient distress,
to be imprisoned. He paid the costs, but not the fine, and a dis-
tress warrant was issued against him." Nothing being made under
the distress, a warrant of commitment was issued, and he was
imprisoned. Held, that the commitment was bad. Sinden v.
Brown, 17 A. R 173. See Eastman v. Reid, 6 U. C. E. 611.
Where a justice of the peace has jurisdiction to try a complaint
and there has been a regular information, but the conviction and
warrant of commitment are defective, he is not liable in trespass
for anything done prior to the conviction. Sewell v. Olive, 4
Allan, X. B. 394.
The defendant, as a justice, issued a warrant against the plain-
tiff upon a complaint for detaining some clothes. The plaintiff,
upon being told by the constable that he had a warrant, went alone
to the defendant, the defendant heard the evidence in presence
of plaintiff, and plaintiff was allowed to go away without giving
bail and returned the next day, when defendant discharged him.
Held, that no imprisonment was proved, and that the defendant,
having jurisdiction over the subject-matter of the complaint, was
not liable in trespass, even if the information was insufficient in
form. Thorpe v. Oliver, 20 U. C. B. 264.
Detention pending adjournment. Held, that defendant will
not be held liable for the plaintiff's sufferings caused by the con-
ACTIONS AGAINST JUSTICES. 9S
dition of the lock-up, for he had remanded him only, giving no
express directions to put him there. The defendant had offered
to take bail, hut plaintiff refused to give it, saying, " Send me to
gaol," and the defendant ordered the constable to take him into
custody. The constable thereupon put him in the lock-up, which
was cold and uncomfortable. Crawford v. Beattie, 39 U. 0. R. 13.
The falsity of a charge cannot give cause of action against a
magistrate who acts upon the assumption and belief of its truth,
and an allegation that he acted without any just cause upon a false
charge, but not charging malice, means only that the charge being
false, he had no just cause. Sprung v. Anderson, 23 C. P. 152.
Illegal arrest, excessive punishment, see Mclver v. McGillivray,
24. C. L. T. Occ. K 142, 237.
Plaintiff was arrested upon a warrant issued by defendant, a
justice, and brought before him. Defendant examined the plain-
tiff, but took no evidence, and said he could not bail plaintiff, and
committed him to gaol on a warrant reciting he was charged
before him with stealing. The plaintiff did not ask to be heard
or to give evidence. Held, defendant liable in trespass. Connors
V. Darling, 23 U. C. R. 541, followed in Piggott v. French, 21 0.
L. R. 87.
A magistrate, having entertained a case under the Masters and
Servants Act, R. S. 0., c. 157, s. 12, and convicted the plaintiff,
notwithstanding more than a month had elapsed since the ter-
mination of the engagement, and, although he was told that he
had no jurisdiction and was shown a professional opinion to that
effect and referred to the statutes. Held, that the jury were war-
ranted in finding that he did not iona fide believe that he was
acting in the execution of his duty in a matter within his juris-
diction, and that he was, therefore, not entitled to notice of
action. Cummins v. Moore, 37 U. C. R. 130. See also Cross v.
Wilcox, 39 U. C. R. 187 ; Anderson v. Wilson, 25 0. R. 91 ; Jones
V. Grace, 17 0. R. 681; Hallett v. Wilmot, 40 U. C. R. 263;
McKinley v. Munsie, 15 C. P. 230; Stewart v. Hazen, 2 Allan N.
B. R. 254; Kalar v. Cornwall, 8 U. C. R. 168; Graham v. Mc-
Arthur, 25 TJ. C. R. 478; DicJcson v. Crahh, 24 U. 0. R. 494;
Moffal V. Barnard, 24 U. C. R. 498.
Compelling Performance of Duties.
The fifth section of the Act (R. S. 0. 1914, c. 89) provides
for an application to the Court for an order nisi requiring a
justice to do any act relating to the duties of his office.
96 COMPELLING JUSTICES TO PERFOEM DUTIES.
If a justice refuses to do any act which, as a justice, he ougiit
to do, a Judge of the Supreme Court or a Judge of the proper
County or District Court may, under this section, order him to
do it.
When magistrates have made legal convictions, regular in
form, they have no discretion to refuse to issue warrants to en-
force the penalties on the ground of some supposed hardship in
the number of the convictions or the amount of the costs: R. v.
Hartley, 31 L. J. M. C. 232. See also R. v. Deverell, 3 E. & B.
372, and R. v. JJ. Oxfordshire, 18 L. J. M. "C. 222.
The following are cases in which the Court refused to order
the justices to do the acts required of them. Delaney v. McNdbh,
21 C. P. 563; R. v. Bristol, 18 Jur. 426 n; Re Clee, 21 L. J.
M. C. 112.
The Court will inquire into the validity of the order before
compelling the justice to enforce it by distress and will refuse to
do so if the order appears to be invalid. R. v. Collins, 21 L. J,
M. C. 73; R. v. Browne, 13 Q. B. 653.
When a magistrate has bona fide exercised his discretion in re-
fusing to do any act relating to the duties of his office, such as to
grant a summons for an indictable offence, the Court has no juris-
diction to compel the magistrate to review his decision, or to order
him to exercise his discretion in any particular way. The statute
only extends to cases where the magistrate does not consider the
propriety of doing, or not doing, the act in question. Ex parte
Lewis, 16 Cox C. C. 449.
But, when the magistrate, having taken an information for a
criminal offence, refuses to issue either a summons or a warrant
without giving any reason, an order nisi should he issued against
him under the Act. R. v. Graham, 17 C. C. C. 264.
There must be a refusal to adjudicate before the Act can be in-
voked. R. V. Paynter, 26 L. J. M. C. 102, 7 E. & B. 328.
Where the magistrate has heard and adjudicated, the section
does not apply. R. v. Dayman, 7 E. & B. 672.
See also Re Clee, supra, R. v. Blanshard, 18 L. J. M. C. 110;
R. V. Ingham, 17 Q. B. 884, as to costs.
By sec. 9 of the Act (E. S. 0. 1914, ch. 89), if any action is
brought, where by this Act it is enacted no such action shall be
brought under the particular circumstances, a Judge of the Court
in which the action is pending may set aside the proceedings in the
action.
ACTIONS AGAINST JUSTICES — NOTICE OF ACTION, 97
In an action against a justice of the peace for false imprison-
ment, and for acting in his office maliciously and without reasonable
and probable cause, an application was made before statement of
claim to set aside the proceedings under s. 12, E. S. 0. 1887, c. 73,
on the ground that the conviction of the plaintiff made by the de-
fendant had not been quashed. It appeared, however, that plain-
tiff wa.i arrested and imprisoned under a warrant issued by the
defendant which had no conviction to support it, and the Court
held that the case was not within the section. Per Robeetson, J.
The plaintiff had a complete cause of action without setting aside
the conviction. Per Meredith, J. The application was prema-
ture. Wehb V. Spears, 15 P. E. 232.
By s. 13, no action shall be brought against any justice of the
peace for anything done by him in the execution of his office unless
the same is commenced within six months next after the act com-
plained of was committed.
As to whether action commenced in time, see Hardy v. Ryle, 9
B. & C. 603 ; Massey v. Johnson, 12 East. &7 ; Weston v. Fournier,
14 East. 491. See also s. 1143 of the Code.
There may be a series of acts connected together, and yet each
giving rise to a cause of action. Collins v. Rose, 5 M. & W. 194.
In an action against a justice for illegal distress, the limited
period begins to run from the entry on the plaintiff's premises and
not from the date of the conviction. Polley v. Fordhdm, [1904]
2 K. B. 345, 90 L. T. 755.
KoTicE or Action.
By the Public Authorities Protection Act, E. S. 0. 1914, ch. 80,
all enactments requiring notice to be given to magistrates and
justices of the peace in Ontario of actions against them, in respect
of matters under the Provincial statutes, are repealed, but the fol-
lowing cases will be useful in the Provinces in which such enact-
ments are still in force, also in interpreting section 1144 of the
Criminal Code wliich applies to all actions for things purporting
to be done under any Dominion Act relating to criminal law
By sec. 14, E. S. 0. 1897, ch. 88, the justice was entitled to one
calendar month's notice of the action. The notice shall be in
Avriting and served upon the justice. This means a clear month's
notice exclusive of the first and last days or the day of giving notice
98 NOTICE OF ACTION.
and suing out the writ. Dempsey \. Dougherty, 7 U. C. R. 313;
Young v. Higgon, 6 M. & W. 49.
Where the notice was served on 28th March, and the writ issued
out on the 29th April, this was held sufficient as being at least one
month's notice. Mcintosh v. Vansteenburg, 8 U. C. R. 248, and
see Hatch v. Taylor, 14 N. B. R. 39.
Whenever the act complained of is one which had been done by
a magistrate intending to act as such, however mistaken upon a
subject matter within his jurisdiction, he is entitled to a notice
under the Act. Weller v. Toke, 9 East. 364.
And, although the subject matter of complaint might arise out
of the local jurisdiction of the justice, yet, if he had authority over
the subject matter, he was still entitled to notice. Prestidge v.
Woodman, 1 B. & C. 13.
A justice of the peace is entitled to notice of action whenever
the act which is complained of is done by him in the honest belief
that he was acting in the execution of his duty as a magistrate in
the premises. Sprung v. Anderson, 23 C. P. at p. 159. See also
Friel v. Ferguson, 15 C. P. 583, and Scott v. Reburn, 25 0. R. 450,
and cases there cited.
The test is whether or not the defendant bona fide believed in
the existence of facts which, if they existed, would give him juris-
diction. Mott V. Milne, 31 N. S. R. 372; Chamberlain v. King,
L. R. 6 C. P. 474; Onffith v. Taylor, 2 C. P. D. 194.
A magistrate is entitled to notice although he has acted without
jurisdiction. When it was clear that defendant had acted as :i
justice of the peace and there was no evidence of malice, except the
want of jurisdiction, it was held not necessary to entitle him to
notice to leave it to the jury to say whether he had acted in good
faith. Bross v. Ruber, 18 IT. C. R. 282.
Magistrate acting virithout jurisdiction and not bona fide: see
Campbell v. Walsh, 18 C. C. C. 304.
Where a magistrate acts in direct contravention of the statute
in issuing a warrant without the proper information, or without
even a verbal charge having been laid against the plaintiff, and
there is no evidence of bona fides on his part, he is not entitled to
notice of action. Friel v. Ferguson, 15 C. P. 584.
In McGuiness v. Dafoe, (1896) 3 C. C. C. 139, it was held that
a justice of the peace who illegally issues a warrant without having
received a sworn information in respect of the charge is liable in
trespass for the arrest made thereunder, and he cannot justify the
NOTICE OF ACTION AGAINST JUSTICES. 99
commanding of the constable to make the arrest by shewing that he,
the justice, had a reasonable suspicion that an offence had been
committed. A question was raised as to the notice of action. The
defendant contended that the notice served was defective. The
plaintiff relied upon it as sufficient, and in the alternative set up
that no notice was necessary. Burton, J.A., who delivered the
judgment of the Court of Appeal, says, at page 147 : " It was
simply a notice of action for trespass and nothing more. As we
hold the notice to be sufficient, it is perhaps hardly necessary to
determine whether, under the circumstances, notice was necessary.
I certainly do not wish to intimate any opinion that it was not."
"The principle on which we decided Sinden v. Brown, 17 A. R.
173, fully supports the defendant's right to notice of action/' See
also the cases cited by the learned Judge on pages 148 and 149 as to
notice.
As to the form of the notice, see Upper v. McFarland, 5 U. C.
E. 101 ; Gillespie v. Wright, 14 U. C. R. 53 ; McGuiness v. Dafoe, 23
A. E. 704, 27 0. E. 117; Bond v. Conmee, 16 A. E. 398, 15 0. E.
716.
The notice must state the cause of action explicitly. McCrilvery
V. GauU, 17 N. B. E. 641.
The notice must state the time of arrest and imprisonment com-
plained of. Sprung v. Anderson, 23 C. P. 152. See Scott v.
Rehurn, 25 0. E. 450 ; Parhyn v. Staphs, 19 C. P. 240 ; Oliphant
V. Leslie, 24 U. C. E. 398.
The notice must contain a statement of the place where the
trespass or injury was committed. Kenihle v. McOarry, 6 0. S.
570. ; Madden v. Shewer, 2 U. C. E. 115.
If the notice wrongly stated the name of the township in which
the arrest took place, it is insufficient. Aldricli v. Humphrey, 29
0. E. 427.
The place where the plaintiff was imprisoned must be correctly
stated. Cronkhite v. Sommerville, 3 U. C. E. 129.
The notice must shew that the defendant acted maliciously.
Scott V. Rehurn, 25 0. E. 450.
Unless his acts were witliout jurisdiction. Hatch v. Taylor, 14
N. B. E. 39.
The particular court in which it is proposed to bring the action
must be specified. Bross v. Huher, 18 U. C. E. 282; Neville v.
Ross, 22 C. P. 487.
Where the notice stated that the action would be brought in the
Queen's Bench, but the writ was, by mistake, issued out of tlio
100 NOTICE OF ACTION AGAINST JUSTICES.
Common Pleas, it was held that the notice could not be amended
under the A. J. Act, 1873. McCrum v. Foley, 6 P. E. 164.
No objection that plaintiff declares by a different attorney from
the one by whom the notice was given and process issued. McKenzie
7. Mewhurn, 6 0. S. 486.
Where a defendant, after accepting service of an informal
notice, added, " and agree to accept the same as sufficient notice of
action to me under the statute," it was held that he could not
afterwards rely on a defect in the notice. Donaldson v. Haley, 13
C. P. 87.
No particular addition or description of the magistrate need be
given in the notice. Haacke v. Adamson, 14 C. P. 201.
The notice must declare the place of residence of the attorney.
Bates V. Walsh, 6 U. C. E. 498 ; Armstrong v. Bowes, 12 C. P. 539 ;
In Gillespie v. Wright, 14 U. C. E. 52, however, a similar objection
was overruled.
Where the name and place of residence of the plaintiff's attorney
were not endorsed on the notice, but added inside at the foot of it,
this was held sufficient. Bross v. Huher, 15 U. C. E. 625 ; and see
also McGilvery v. Gault, 17 N. B. E. 641 ; Oslorn v. Gough, 3 B.
& P. 551.
In Taylor v. Fenwick, 7 T. E. 635, it was held that the place of
residence of the attorney was not sufficiently stated by his conclud-
ing the notice thus : " Given under my hand at Durham."
As to statement of plaintiff's place of abode in the notice.
Moran v. Palmer, 13 C. P. 528 ; Jones v. Grace, 17 0. E. 681 ; Neiil
V. McMillan, 25 U. C. E. 485; McDonald v. StucTcey, 31 U. C. E.
577.
The notice may be served before the conviction, order or war-
rant complained of has been quashed under the fourth section of
the Act. Hayloch v. Sparhe, 22 L. J. M. C. 67.
A justice acting without qualification is not entitled to a
notice of action. Crabh v. Longworth, 4 C. P. 283.
Neither is notice of action necessary in an action for not re-
turning a conviction. Grant v. McFadden, 11 C. P. 122,
The tendency of Courts has been rather to extend than restrict
the protection afforded to peace officers professing to act in the
execution of the duty by notices of action. Per Barker, J., in
White V. Hamm, (1903) 36 X. B. E. 237.
In England, by the Public Authorities Protection Act (1893),
all enactments that notice of action be given are repealed ; but an
TENDER OF AMENDS — COSTS OF ACTION. 101
opportunity of tendering amends must still be given. Paley, 8th
ed. 504.
Tender of Amends.
Sub-section (3) of section 13 of E. S. 0. 1914 ch. 89, provides:
(3) If, in the opinion of the Court, the plaintiff has not given
the defendant a sufficient opportunity of tendering amends before
the commencement of the proceeding, the Court may award to the
defendant costs to be taxed as between solicitor and client.
Tender without payment of the money into Court will entitle
the defendant to a verdict. Gidney v. Dihhlee, 15 N. B. E. 388.
The New Brunswick Act (1903), ch. 63, provides that where
the plaintiff shall be entitled to recover in any action against a
justice he shall not have a verdict for any damages beyond two
cents or any costs of suit, if it shall be proved that he was guilty
of the offence of which he was convicted, etc. In an action for
false imprisonment brought against a magistrate who, without
'urisdiction, had committed the plaintiff to prison for making
default in payment of a fine imposed upon him for selling liquor
without a license, evidence was offered and admitted in proof of
the plaintiff's innocence of the charge. Held, that the evidence
was properly received, and that the plaintiff, in order to prove his
innocence, was not confined to such evidence as had been given
before the magistrate in the trial of the information. Lahelle v.
McMillan, 34 N. B. E. 488. See also Smith v. Simmons, 15 F. B.
E. 803; McGilvery v. GauU, 19 N. B. E. 217.
See also section 10 of E. S. 0. 1914, ch. 89, which provides
similar protection for magistrates and justices in Ontario.
Costs of Action.
Section 13 of E. S. 0. 1914, ch. i89, provides that, where in any
such action costs are awarded to the defendant, the Court may direct
that they be taxed as between solicitor and client. See Arscott v.
Lilley, 14 A. E. 283.
Held, that plaintiff should not have costs on the Superior Coui-t
scale when his damages are assessed for $25, the recovery being
within the jurisdiction of an inferior Court. Ireland v. Pitcher,
11 P. E. 403.
Security for Costs.
Section 16 of E. S. 0. 1914, ch. 89, provides for security f<)r
costs in actions against justices. See page 13.
103 SECURITY FOR COSTS — CRIMINAL INFORMATION.
Held, that the Court should be less exacting as to the char-
* acter of the property where the person is a bona fide resident than
in the ordinary case of a stranger who seeks to justify upon
property within the jurisdiction; the test is, is it such property
as would be forthcoming and available in execution? And, when
the plaintiff had property, partly real and partly personal, to the
value of $800 over and above his debts, incumbrances and exemp-
tions, security for costs was not ordered. Bready v. Robertson, 14
P. R. 7. See also Parkes v. Baker, 17 P. R. 345 ; Thompson v.
Williamson, 16 P. R. 368 ; Southwick v. Hare, 15 P. R. 222, and
Ashcroft V. Tyson, 17 P. R. 42.
Criminal Information.
If the misconduct of magistrates, besides being productive of
private injury, be such as to call for punishment upon public
grounds, as where it proceeds not from error but from private
interest, or resentment, an information will be directed by the
Court to be filed against the offender upon a proper application,
supported by affidavits. But an information is never granted for
an irregularity arising merely from ignorance or mistake. R. v.
Cozens, 2 Doug. 426 ; R. v. Fielding, 2 Burr. 720 ; R. v. Young &
Pitts, 1 Burr. 556.
It will not be granted on behalf of a magistrate for unwritten
words imputing to him malversation in his office, if the words
were not spoken at the time when he was acting and did not tend
to a breach of the peace. Ex parte Duke of Marlborodigh, 5 Q. B.
955, and see R. v. Burn, 7 A. & E. 190.
A magistrate is entitled to six days' notice of a motion for a
criminal information against him for violation of his duty. The
motion must be made in sufficient time to enable the party accused
to answer the same term. R. v. Heustis, 2 N. S. R. 101. See R.
V. Heming, 5 B. & Ad. 666, and Ex parte Fentiman, 2 A. & E. 127.
The misconduct must have arisen in connection with his public
duties. R. v. Arrowsmith, 2 Dowl. & Dowl, 704.
And where a criminal information is applied for against a
magistrate for improperly convicting a person of an offence, the
Court will not entertain the motion however bad the conduct of the
magistrate may appear, unless the party applying make oath that
he is not really guilty of the offence of which he was convicted.
R. V. Webster, ^3 T. R. 388.
In all cases of an application for a criminal information against
a magistrate for anything done by him in the exercise of the duties
RETURN OF CONVICTIONS. 103
of his office, the question has always been, not whether the act done
might, upon a full and mature investigation, be found strictly
right, but from what motive it had proceeded, whether from dis-
honest, oppressive or corrupt motive, or from mistake, or error ; in
the former case alone they have become the objects of punishment.
E. V. Borron, 3 B. & Aid. 432-4. See also Bustard v. Schofield, 4
0. S. 11; In re Recorder of Toronto, 23 U. C. K. 376; R. v.
WTiately, 4 M. & Ey. 431 ; R. v. Badger, 4 Q. B. 468.
Evidence of a corrupt or improper motive must be shewn iii
order to obtain leave to exhibit a criminal information against a
justice of the peace for acting corruptly or improperly. R. v.
Gurrie, (1906) 11 C. C. C. 343. See Paley, 8th ed., pp. 45, and
511 to 516, and see also Re McMicJcen, 20 C. C. C. 334.
Eetuen of Convictions.
In addition to the provisions of the provincial statutes requir-
ing justices to make returns of convictions and orders, there are
also the provisions under Part XXIII. of the Code as follows :
PART XXIII.
Returns.
1133. Every justice shall, quarterly, on or before the second Tues-
day in each of the months of March, June, ^September and December in
each year, make to the clerk of the peace or other proper officer of the
CJourt having jurisdiction in appeal, as herein provided, a return in
writing, under his hand, of all convictions made by him, and of the re-
ceipt and application by him of the moneys received from the defendants.
2. Such return shall include all convictions and other matters not
included in some previous return, and shall be in form 75.
3. If two or more justices are present, and join in the conviction,
they shall make a joint return.
4. Every justice, to whom any such moneys are afterwards paid, shall
make a return of the receipt and application thereof, to the Court having
jurisdiction in appeal as hereinbefore provided, which shall be filed by
the clerk of the peace or the proper officer of such Court with the records
of his office.
5. In the province of Prince Edward Island such return shall be
made to the clerk of the Court of Assize of the county in which the
convictions are made, and on or before the fourteenth day next before
the sitting of the said Court next after such convictions are so made.
6. Every such return shall be made in the district of Nipissing, in the
province of Ontario, to the clerk of the peace for the county of Renfrew,
in the said province.
1134. Every justice, before whom any conviction takes place, or who
receives any such moneys, who neglects or refuses to make such return
thereof, or wilfully makes a false, partial or incorrect return, or wilfully
receives a larger amount of fees than by law he is authorized to receive,
104: RETURN OF CONVICTIONS BY JUSTICES.
and every justice who upon or in connection with, or under colour or
pretence of, any information, complaint or judicial proceeding or inquiry
had or taken before him, wilfully exacts, receives, appropriates or retains
any fees, moneys or payments which he is not by law authorized to
receive or to be paid, shall incur a penalty of eighty dollars, together
with costs of suit, in the discretion of the C5ourt, which may be recovered
by any person who sues for the same by action of debt or information in
any Court of record in the province in which such return ought to have
been or is made. ,
2. One moiety of such penalty ehall belong to the person suing, and
the other moiety to His Majesty for the public uses of Canada.
3. Nothing in this section ^all have the effect of preventing any
person aggreived from prosecuting, by indictment, any justice, for any
offence, the commission of which would have subjected him to indictment
immediately before the first day of July, one thousand eight hundred and
ninety-three.
1135. When any certificate is granted under section one hundred and
eighteen of this Act, the justice granting it shall forthwith make a return
thereof to the proper officer in the county, district or place in which such
certificate has been granted for receiving returns under this Part.
2. On default of making such return within ninety days after a cer-
tificate is granted, the justice shall be liable, on summary conviction, to
a penalty of not more than ten dollars.
1136. Every commissioner under Part III. of this Act shall make
a monthly return to the Secretary of State of all weapons delivered to
him, and by him detained under Part III.
1137. The clerk of the peace of the district or county to whom
returns under this Part are made, or the proper officer, other than the
clerk of the peace, to whom such returns are made, shall, within seven
days after the adjournment of the then next ensuing general or quarter
sessions, or of the term or fdtting of such other Court having jurisdiction
in appeal as aforesaid, cause the said returns to be posted up in the
courthouse of the district or county, and also in a conspicuous place in
the office of such clerk of the peace, or other proper officer, for public in-
spection, and the same shall continue to be so posted up and exhibited
until the end of the next ensuing general or quarter sessions of the peace,
or for the term or sitting of such other Court as aforesaid.
2. For every schedule so made and exhibited by such clerk or officer,
he shall be allowed such fee as is fixed by competent authority.
3. Such clerk of the peace or other officer of each district or county,
within twenty days after the end of each general or quarter sessions of
the peace, or the sitting of such Court as aforesaid, shall transmit to
the Minister of Finance a true copy of all such returns made within his
district or county.
1138. No return purporting to be made by any justice under this
Act shall be vitiated by the fact of its including, by mistake, any convic-
tions or orders had or made before him in any matter over which an.v
provincial legislature has exclusive jurisdiction, or with respect to which
he acTed under the authority of any provincial law.
1139. Every clerk of the peace or other proper officer shall transmit
to the Minister of Agriculture a quarterly return of the names of offen-
der.s, the offences and punishments mentioned in convictions transmitted
to him under Part XVII. of this Act.
It will be noticed that to neglect to return moneys received, or
to make false returns, or to wilfully take, exact, receive, appropriate
and retain any fees or moneys not authorized, subjects the justice
in default to a penalty of $80. The only noticeable difference
RETURN OF CONVICTIONS BY JUSTICES. 105
between the provisions of the Codie and those of the Provincial
Statutes is that the Code (1134: (2)) provides that one moiety of
the penalty shall belong to the person suing, and the other to His
Majesty, for the public uses of Canada, whereas in the Provincial
Statutes one moiety goes to the party suing and the other to His
Majesty in right of the province.
The provisions of sub-section 3 of section 1134 are important
to be read in connection with what has gone before on the subject
of criminal information.
If the conviction as returned is defective in form, the justice
may make out another according to the evidence adduced before
him and return it to the sessions. R. v. Bennett, 3 0. E. 45.
The fact of the conviction being appealed from does not relieve
the justice from the penalty on non-return of the conviction under
E. S. 0. 1897, ch. 93. Murphy q. t. v. Harvey, 9 C. P. 528. See
also Kelly q. t. v. Cowan, 18 U. C. E. 104.
As to what time will be allowed to a magistrate for making a
return which the statute requires to be immediate, see McLellan
q. t. V. Mclntyre, 12 C. P. 546 ; McLellan q. t. v. Brown, 12 C. P.
542, and Longeway v. Avison, 8 0. E. 357.
The question as to the conviction being right or wrong is
immaterial; and, when a magistrate has actually convicted and
imposed a line, it is no defence that he had no jurisdiction to con-
vict. Bagley q. t. v. Curtis, 15 C. P. 366; O'Reilly q. t. v. Allan,
11 U. C. E. 411.
The neglect of the justice to return the conviction made by him
as prescribed, renders him liable under the statutes to a separate
penalty for each conviction not returned, and not merely to one
penalty for not making a general return of such convictions.
Darragh q. t. v. Paterson, 25 C. P. 529. See also the following
qui tarn decisions : Keendhan v. Egleson, 22 TJ. C. E. 626 ; Ollard
V. Owens, 29 U. C. E. 515; Ball v. Fraser, 18 U. C. E. 100; Atwood
V. Rosser, 30 C. P. 628; Stinson v. Guess, 1 C. L. J. 19; Drake v.
Preston, 34 U. C. E. 257; Metcalf v. Reeve, 9 U. C. E. 263.
Police magistrates in Ontario do not need to make the quarterly
returns required by E. S. 0. 1914, ch. 87, sec. 20, to be made by
Justices of the Peace. See section 27 and Hunt v. Shaver, 22 A.
E. 202 ; R. v. Graves, 21 0. L. E. 330.
As to actions against magistrates for penalties for wilfully
exacting unauthorized fees, see Aihins v. Simpson, 18 C. C. C. 99,
affirmed on appeal, 19 C. C. C. 325.
106 JUSTICES EXACTING UNAUTHORIZED FEES.
In McGilUvray v. Muir, (1903) 7 C. C. C. 360, it was held
by Febguson and MacMahon, JJ., sitting as a Divisional Court,
that the provisions of section 902 of the Code (now section 1134)
apph'ed only to fees received under the summary convictions part
of the Code. And that a wilful receiving of unauthorized fees
means receiving them intentionally with a knowledge that there is
no legal right to collect them. MacMahon, J., at pp. 363-364,
says : " The ground principally relied upon in support of the
appeal was that the Act only applies to cases where a justice acting
under the Summary Convictions Act wilfully received a larger
amount of fees than by the tariff he was authorized to receive.
And as tlie fee he charged and received was in connection with
an indictable offence for which no fee is authorized either by the
tariff of the Province, or of the Dominion, no action could be main-
tained against him for the penalty." ..." Our Acts already
referred to authorize the taking by the justices of the fees men-
tioned therein solely in cases where the magistrate has jurisdiction
under the Acts relating to summary convictions, and it is for an
infraction of either of these Acts by wilfully taking a larger fee
in such cases that he may be penalized. There is no Act of Parlia-
ment authorizing the taking of a fee on a charge made for an
indictable offence which was claimed and taken by the defendants
in this case, and he cannot be sued for a penalty for none is
attached. That is the effect of Bowman v. Blyth, 7 E. & B. 26.
The defendant might have been indicted for extortion under sec-
tion 905 (now sub-sec. 3 of section 1134) of the Criminal Code.
See R. V. Tisdale, (1860) 20 U. C. E. 272."
Section 157 of the Code is as follows:
157. Every one is guilty of an indictable offence and liable to four-
teen years' imprisonment who, —
(a) being a justice, peace officer, or public officer, employed in any
capacity for the prosecution or detection or punishment of offenders,
corruptly accepts or obtains, or agrees to accept or attempts to
obtain for himself, or for any other person, any money or valuable
consideration, office, place or employment, with the intent to in-
terfere corruptly with the due administration of justice, or to pro-
cure or facilitate the commission of any crime, or to protect from
detection or punishment any person having committed or intending
to commit any crime ; or,
(6) corruptly gives or offers to any officer aforesaid any such bribe
as aforesaid with any such intent.
By section 2 of the Code, sub-sections 18, 26 and 29, a "jus-
tice," a " peace officer " and a " public officer " are defined as
follows :
(18) 'justice' means a justice of the peace, and includes two or more
justices, if two or more justices act or have jurisdiction, and also
MANDAMUS AND PROHIBITION. 107
a police magistrate, a stipendiary magistrate and any person having
the power or authority of two or more justices of the peace ;
(26) ' peace officer ' includes a mayor, warden, reeve, sheriff, deputy
sheriff, sheriffs officer, and justice of the peace, and also the
warden, deputy warden, instructor, keeper, guard, or any other of-
ficer or permanent employee of a penitentiary and the gaoler or
keeper of any prison, and any police officer, police constable, bailiff,
constable or other person employed for the preservation and main-
tenance of the public peace, or for the service or execution of civil
process ;
(29) 'public officer' includes any inland revenue or customs officer,
officer of the army, navy, marine, militia, Royal Northwest Mounted
Police, or other officer engaged in enforcing the laws relating to
the revenue, customs, trade or navigation of Canada ;
Where application is made to a magistrate to take and receive
an information for an indictable offence which he cannot deal witii
summarily, he cannot demand any fees: Eobertson, J., at y. 321,
in R. V. Meehan (No. 2), (1902) 5 C. C. C. 312.
As to the exacting of unauthorized fees by justices, see Aikins
V. Simpson, 18 C. C. C. 99, 19 C. C. C. 325.
Mandamus and Peohibition.
There are two other remedies which may be invoked against
justices to compel them either to do some act relating to the duties
of their office, or to refrain from doing some act in excess of their
jurisdiction. The first is by mandamus and the second by prohi-
bition.
Mandamus. We have seen that by K. S. 0. 1914, ch. 89, sec. 5,
an application may be made to a Judge to compel a justice of the
peace to do any act relating to the duties of his office which he has
refused to do. In modern practice this mode of procedure is
adopted in preference to applying for a mandamus. Re Delaney v.
McNahh, 21 C. P. 563.
In Ontario and Manitoba writs of mandamus and prohibition
have been abolished, and orders of the Court having the same
effect are substituted t;herefor. For the practice relating to
mandamus and prohibition, see Holmested & Langton, 3rd ed.,
pp. 1293 and 1307.
Mandamus is a command issuing in the King^s name out of
the Court of King's Bench or High Court directed to any person,
corporation, or Court of inferior jurisdiction, requiring them to do
some particular thing therein specified, which appertains to their
office and duty. It is a high prerogative writ of a most exten-
sively remedial nature. Being a prerogative writ, it runs into all
privileged places. R. v. Commissioners of Excise, 2 T. E. 385.
108 MANDAMUS.
It is always granted where there is a specific legal right, but
no other specific legal remedy, or where it is doubtful whether
there is. R. v, Windham, 1 Cowp. 377; R. v. 8t. Katherine Dock
Company, 4 B. & A. 360; R. v. Jeyes, 3 A. & E. 416; R. v.
Nottingham, 6 A. & E. 355. And not where a party has a specific
legal remedy : R. v. Bishop of Chester, 1 T. E. 396 ; or a remedy
in equity : R. v. Marquis of Stafford, 3 T. E. 646.
But the Court will not grant a mandamus commanding justices
to do that which may render them liable to an action of which the
event may be doubtful. R. v. Dayrell, 1 B. & C. 485 ; R. v. Bro-
denp, 5 B. & C. 239 ; R. v. Hughes, 3 A. & E. 425.
" No case has been cited nor have I been able to find any where
a mandamus issued to recall a sentence already passed and to im-
pose another. ... I find in Short on Informations, p. 250;
' Mandamus is not granted to undo an act already done. The
Court will not allow the validity of the act done to be tried in this
way.' The Court has always refused to allow an application for
a mandamus to be made the occasion or excuse for obtaining the
opinion of the Court on some doubtful question of law." R. v.
Case {No. 1), 7 C. C. C. 204, per Brittox, J., at p. 206. "I
cannot command the police magistrate to open the conviction and
re-consider, or re-convict. That is unquestionably a judicial act,
and as to that no complaint is made by any one. If the penalty
is now changed, the defendant may be deprived of his right to
appeal. The defendants' rights must be considered," per Beit-
ton, J., at p. 210.
Held, in this case, that a mandamus does not lie to compel
an inferior Court to render a judgment in terms conformable to
the opinion of the superior Court, nor to correct the erroneous
decision of an inferior Court in a matter within its jurisdicton,
unless by such decision the jurisdiction is denied. See also R. v.
Case (No. 2), 7 C. O. C. 212, affirming R. v. Case (No. 1), supra.
The province of the writ of mandamus, in so far as it affects
the action of inferior Courts, is not to be extended for the purpose
of compelling them to render a particular judgment in accordance
with the views of the higher Court. High on Extraordinary Legal
Remedies, 3rd ed., s. 149. See The Queen v. Justices of Middle-
sex, (1839) 9 A. & E. 540, and R. v. Martin, 18 C. C. C. 107.
The interference of the Court by mandamus is occasioned by
inferior Courts, or persons, refusing to proceed in some course
prescril)ed by law and not in consequence of any misapprehension.
MANDAMUS. 109
or error in that course, provided they have entered upon it. Lord
Denman, at p. 547, in R. v. Eastern Counties R. W. Co., 10 A. &
E. 531 ; R. V. Hewes, 3 A. & E. 725.
When a magistrate decides erroneously that he has no juris-
diction to receive an information, a mandamus will lie to compel
him to do so ; but, when he has considered the material on which
the application is based and refused to grant the summons, the
Court will not interfere by mandamus. R. v, Meehan (No. 3), 5
C. C. C. 313. See also R. v. AUerton, 32 C. C. C. 273.
An application for a mandamus against a magistrate is a civil,
not a criminal, proceeding. The procedure is governed in Ontario
by the Ontario Judicature Act, and the application for an order
absolute must be made to a single Judge in Court and not to a
Divisional Court. R. v. Meehan (No. 1), 5 C. C. C. 307.
The law does not oblige a magistrate to issue his warrant
except when, in his opinion, a case for so doing is made out ; he is
not obliged to give all his reasons, he has merely to express his
opinion. That the magistrate did not properly appreciate the evi-
dence submitted upon an application for the issue of the warrant
of arrest for an indictable offence, is not a ground for a mandamus
to compel him to issue a warrant. Thompson v, Desnoyers
(1899), 3 C. C. C. 68. R. v. Biddinger, 33 C. O. C. 317.
The County Court Judge, having heard argument and given a
decision on the legal merits, the Court has no right to decide or
inquire whether such decision was right or wrong. Mandamus to
re-open appeal for the purpose of hearing evidence refused.
Strang v. Gellatly, (1904) 8 C. C. C. 17.
A rule nisi was granted for a mandamus to compel a Justice to
issue a warrant of distress for costs in a case wherein the defend-
ant had been convicted and fined under the Fisheries Act for
illegal fishing. The Minister of Marine remitted both the fine
and costs. On motion to make the rule absolute, the Court was
equally divided and no order was made. See judgment of
Baeker, J., at p. 45, and cases cited by him. Ex parte Gilbert,
(1904) 10 C. C. 0. 38.
The accused, on acquittal in the Court of General Sessions in
Ontario, is entitled to a copy of the record of such acquittal, and
a mandamus will lie to the Clerk of the Peace to enforce delivery
of the same. R. v. Scully, (1901) 5 C. C. C. 1.
" It was the duty of the police magistrate, upon receiving the
information, to hear and consider the allegations of the informant.
110 PBOHIBITION.
and, if of the opinion that cause for issuing a warrant or sum-
mons was not made out, to refuse it, and, having so acted, this
Court has no jurisdiction over him. It is his judgment, not mine,
nor that of any other Judge, or Court, which is to be exercised
under sec. 559 (now sec. 655) of the Criminal Code: see Ex p.
Lewis, (1888) 21 Q. B. D. 191; E. v. Paynter, (1857) 7 E. & B.
337, and R. v. Dayman, (1857) 7 E. & B. 672. This application
must, therefore, be refused." Meredith, J., in Re E. J. ParJce,
(1899) 3 C. C. C. 122. See also Re Broom, 18 C. C. C. 254.
In cases of mandamus for returns, or false returns, by justices,
the provisions set out in Eules 1085-10S7 of the Judicature Act
of Ontario are substituted for 9 Anne, cap. 25.
Prohibition.
Prohibition is the proper remedy when an inferior Court is
exceeding its jurisdiction, but not when it has committed an error
in law, or good conscience, in a case in which it has jurisdiction.
Siddal V. Gibson, 17 TJ. 0. E. 98.
Prohibition is an extreme measure and granted summarily
only in a very plain case of the unlawful exercise of jurisdiction
by a subordinate tribunal. Re Cummings & Carhton, 25 0. E.
607.
Where neither the information nor the evidence before the
magistrate discloses any offence against the law, prohibition may
be granted by a superior Court pending an adjournment ordered
by the magistrate for the purpose of deliberating on his finding.
Prohibition may be granted ex parte under Kova Scotia Crown
Bule 72 in respect of an illegal prosecution under the Nova Scotia
Liquor License Act. R. v. Breen, (1904) 8 C. C. C. 146.
" Prohibition will not lie unless there is a lack of jurisdiction
in the judicial officer or Court dealing wth the proceedings.
Much latitude is contemplated in the course of this preliminary
investigation, both in the way of varying and amending and in
the reception of evidence, so that the scope of the inquiry may
be enlarged and matters touched upon beyond the scope of the
original charge. This consideration has been overlooked in re-
gard to many of the cases cited. I mean the wide distinction
which exists between the magistrate who has plenary jurisdiction
to try the offence in a summary way, and the justice who is deal-
ing with a preliminary inquiry in respect to an indictable offence
which is to be passed on to another tribunal for trial. The dis-
TEOHIBITION. Ill
tinction is adverted to very clearly by Lord Russell, G.J., in The
Queen v. Brown, [1895] 1 Q. B., at pp. 126-137." Boyd, C, in
B. V. Phillips, 11 O. C. C. 89, says, at p. 91, . . . " In pro-
hibition, the only question is whether the justices had jurisdic-
tion. If they had refused to hear legal evidence, or decided im-
properly upon the evidence, that would be misconduct, but it
would be different from acting illegally and without jurisdiction.
Regina v. Higgins, 8 Q. B., at p. 150, note in the report in 10
Jurist, suh nomine Ex pwrte Higgins, (1843) 838, it is said, the
remedy for misconduct would be by criminal information, and if
they act maliciously they are liable to an action on the case."
Boyd, C, in same case, at p. 93. In this case, the magistrate
holding a preliminary inquiry refused to order particulars of a
general charge of " conspiracy to defraud the public," and an
application for an order of prohibition was refused.
" No doubt, in a proper caise and for a proper excess of juris-
diction, the superior Court may, in virtue of articles 50 and lOOi^
of the Code of Civil Procedure of this Province, issue a writ of
prohibition to displace, or interfere, in a criminal case, with the
control of the proceedings, which must be exercised in the manner
and form provided by law, as article 50 says. It does not mean
that the superior Court, which is a civil tribunal without criminal
jurisdiction, has a right by its writ of prohibition to displace or
interfere in a criminal case with the procedure or remedies pro-
vided for the case by the Federal Legislature, which has exclusive
jurisdiction in criminal law and procedure. Thus, in Audet &
Doyon, 10 Q. L. R. 21, McCoed, J., in delivering the judgment of
the majority of the Court, said : ' Prohibition is an extraordinary
remedy, and should not be employed where the party has a com-
plete remedy in some other and more ordinary form.' " Tren-
ITOLME, J., in E. V. Amyot, (1906) C. C. C. 232, at pp. 237, 238.
In this case, the Court of King's Bench (Appeal side), Quebec,
annulled and quashed a writ of prohibition that had been granted
to restrain the enforcement of a summary conviction in a case of
selling liquor to Indians. The Court held that a writ of prohibi-
tion should not be granted to restrain the enforcement of a sum-
mary, conviction in a criminal matter while another adequate
remedy is available, viz., an appeal from the conviction or, a stated
case. See also Laliherte & Fortin, 2 Que. Q. B. 573; Tessier v.
Desnoyers, 12 Q. R. S. C. 35.
Prohibition will not lie to restrain the issue and enforcement
of a distress warrant by a justice upon a conviction regular on its
112 PROIIIBITJON,
face, and which was within the jurisdiction of the justice making
it, such acts being ministerial and not judicial. R. v. Coursey,
27 0. E. 181.
Prohibition will not issue to prevent a hearing where the
magistrate has jurisdiction. Bemidry v, Lafontaine, 17 Q. R. S.
C. 396.
" It is a» principle of universal application and one which lies
at the foundation of the law of prohibition, that the jurisdiction
is strictly confined to cases where no other remedy exists, and it is
always a sufficient reason for withholding the writ that the party
aggrieved has another complete remedy at law." High on Extra-
ordinary Legal Remedies.
It has to be remembered that the writ of prohibition is a dis-
cretionary writ only, and will not be granted unless there is a
clear failure of jurisdiction, R. v. CJiipman, (1897) 1 0. C. C.
81, per Drake^ J., at p. M.
Held, on motion for prohibition, that there was no authority
for the return of the information to the convicting justice after
the quashing of the conviction, as the section of the Criminal
Code, 1892 (sec. 895), only applies in cases where before that
section a procedendo would have been issued to send back a
record; that the information was, therefore, not properly before
the justice when he issued the second summons, and that he had
no jurisdiction to proceed upon it, and a prohibition was granted
without costs. R. v. Zickrick, 11 M. R. 452.
If the want of jurisdiction of an inferior Court is apparent
on the face of the proceedings, the defendant may move at any
time for prohibition ; but, if it does not so appear, he should first
raise the objection in the inferior Court. Wright v. Arnold, 6 M.
R. 1, and see Maxwell v, Clark, 10 M. R. 406 ; see also Farquhar-
so:'y v. Morgan, [1894] 1 Q. B. 552, and Broad v. Perkins, 21 Q.
B. D. 533.
Prohibition will lie against the enforcement of a summary
conviction under an invalid municipal by-law: R. v. Sparks, 12
C. 0. C. 184, also to prevent a County Court Judge entertaining
an appeal from the decision of a police magistrate on a summary
trial of an indictable offence, when no such appeal lies: Re
Bwhanan, 22 C. C. 0. 199.
It is also a well recognized doctrine that a writ of prohibition
is not to be granted to the applicant therefor as a matter of
absolute right: but that it is in the discretion of the Court to
PROHIBITION. 113
grant or refuse it. Short & Mellor's Crown Office Practice, 2nd
ed., p. 255. And see R. v. Nunn, 15 M. E. 288, and R. v. Ham-
linh, 19 C. C. C. 493.
Prohibition will be granted upon the application of a stranger
to the proceedings when a justice is clearly exceeding his jurisdic-
tion, as such is a contempt of the Crown. Worthington v. Jej-
ries, L. E. 10 0. P. 379 ; Chambers v. Green, L. E. 20 Eq. 552.
Re Ilolman and Rea, 21 C. C. C 11.
The application for prohibition may be made at the outset of
the proceedings, or at the latest stage if the want of jurisdiction
is apparent, and there remains anything to prohibit. Brazill v.
Johns, 24 0. E. 209. Re Holman and Rea, supra.
Prohibition is a civil, not a criminal, proceeding. R. v. Such
Sin, 18 C. C. C. 266.
114 INFORMATION AND COMPLAINT.
CHAPTER V.
Information and Complaint.
As all things have their beginning so it is with criminal pro-
ceedings. There must be a commencement, and that is made by
the laying of an information, or making a complaint, before a
justice.
It is requisite in all summary proceedings of a penal nature
that there should be an information or complaint, which is the
basis of all the subsequent proceedings and without which the
justice is not authorized in intermeddling except where he is
empowered by statute to convict on view. Foley, 8th ed., p. 75.
The distinction between an information and a complaint is that
an information is laid against a person charged with the com-
mission of, or who is suspected to have committed, an offence
for which he is liable by law to be imprisoned, or fined or other-
wise punished. A complaint against a person is made when that
person is liable by law to have an order made upon him by a
justice for pa}Tnent of money, or to do some act which he has
refused or neglected to do contrary to law.
The proceeding which forms the ground work of a conviction
is termed " laying " or " exhibiting an information," while the
similar proceeding for the obtaining of an order of justices is
termed making a " complaint." Foley, 8th ed., pp. 76 and 18Jf.
As we have seen in Chapter II., by section 14 of the Code the
distinction between felonies and misdemeanours is abolished.
This distinction may be illustrated by the fact that under the
old law obtaining money by false pretences was classed as a mis-
demeanour, while larceny, burglary, arson and other more heinous
crimes were felonies.
There are some, but not many, indictahle offences that can be
tried and disposed of by summarj- conviction, under Part XV. of
the Code. For instance, common assault; this is an indictable
offence (vide sec. 291), but under sec. 732 the justice may sum-
marily hear and determine the charge — subject to sub-sec. 2. The
application of Part XV.. of the Code is governed by section 706,
and upon reference to that section it will be noticed that the
provisions of Part XV. are limited : —
t'
REQUISITES OF INFOEMATION. 115
(a) To offences or acts for which a person is liable on sum-
mary conviction to imprisonment, &c., and (b), to all cases where
a complaint is made to a justice upon which he can make a sum-
mary order.
It is necessary for a justice to bear in mind these limitations
when an information or complaint is made or laid before him, and,
after a recital of the facts, to ascertain by looking at the several
provisions of the Code relating to specific offences whether or not
he can deal summarily with the offence charged.
If the offence is an indictable one and there is no provision
for its being tried summarily; then, if a warrant is to issue, the
information will require to be in writing and made under oath.
See section 654 of the Code.
If the offence is punishable on summary conviction, then the
complaint or information need not be in writing or under oath
nless it is otherwise provided by Part XV. or by some particular
Act or law. See section 710 of the Code.
It is discretionary with the justice to issue either a summons
or warrant as he thinks best. B. v. McGregor, (1895) 2 C. C. C.
at p. 413.
If a warrant is to issue then the information must be under
oath. E. V. McNutt, 3 C. C. C. 184; B. v. McDonald, (1896) 3
C. C. C. 287.
It is provided by section 711 of the Code that whenever a
warrant is issued in the first instance against a person for an
offence punishable on summary conviction, then the justice issuing
the warrant shall furnish a copy or copies of the same and cause
a copy to be served on the person arrested at the time of his arrest.
It is the duty of everyone executing a warrant to have it with
him and to produce it if required, and any person making an
arrest should, when practicable, give notice of the warrant or of
the cause of the arrest. See sec. 40 of the Code.
The magistrate is himself to exercise the discretionary power
given under sec. 655 and sec. 711 to issue either a summons or a
warrant on a sworn information received by him, that being a
judicial act. U. v. EUinger, (1899) 3 C. C. C. 387; E. v. Mc-
Gregor, ante; Thompson v. Desnoyers, (1899) 3 C. C. C. 68.
When the charge is dismissed for an irregularity in the sum-
mons, the magistrate may proceed to issue a new summons either
upon a fresh information or upon the original information re-
sworn : E. V. Johnson, 17 C. C. C. 172.
116 DISTINCTION BETWEEN INDICTABLE AND OTHER OFFENCES.
The distinction between indictable offences and offences
punishable on smmnary conviction is defined by the " Interpreta-
tion Act," B. S. C. (1906), cap. I., sec. 28, as follows:—
28. Every Act shall be read and construed as if any offence for which
the offender may be, —
(a) prosecuted by indictment, howsoever such offence may be therein
described or referred to, were described or referred to as an in-
dictable offence ; and,
(6) punishable on summary conviction, were described or referred
to as an offence ; and,
all provisions of the Criminal Code relating to indictable offences, or of-
fences, as the case may be, shall apply to every such offence.
2. Every commission, proclamation, warrant or other document re-
lating to criminal procedure, in which offences which are indictable of-
fences, or offences, as the case may be, are described or referred to by any
names whatsoever, shall be read and construed as if such offences were
therein described and referred to as indictable offences, or offences, as
the case may be.
In view of the provisions of Part XVI. of the Code, which
provides for the summary trial of indictable offences, and the
extended .powers given to and the increased responsibilities
assumed by magistrates thereunder, the question of the sufficiency
of informations dealt with under this part becomes increasingly
important, and especially'so in view of the enlarged provisions of
section 777 of the Code. And all magistrates who accept the re-
sponsibility of dealing with indictable offences under this part
of the Oode should scrutinize the information and see that it con-
ta,iilg~^ll the necessary ingredients. The information takes the
place of the indictment as it contains the offence with wliich the
accused is charged.
It is to be noted that in sec. 778 the words " information " and
" indictment " are neither used nor referred to. The word
" charge " is used only and comprehends " the information " used
in summary convictions and " indictment " in jury trials. The
magistrate on putting the accused to his election must state that
he is " charged " with the offence, descTibing it. If the person
charged consents then the magistrate shall " reduce the charge to
writing," But, as we shall see hereafter, if the charge has already
been reduced to writing (viz., the information), it is not necessary
to write it out again. R. v. Shepherd, 6 C. C. C. 463. The offence
that is described must be the offence set out in the information :
the charge is, therefore, based on the information.
Sec. 2 (16) declares that the expressions ''indictment" and
"count" respectively include information and presentment as
well as indictment. Section 951 is as follows: —
951. Every count shall be deemed divisible; and if the commission of
the offence charged, as described in the enactment creating the offence or
INFORMATION AND INDICTMENT. 117
as charged in the count, includes the commission of any other ofifence, the
person accused may be convicted of any offence so included which is proved,
although the whole offence charged is not proved ; or he may be con-
victed of an attempt to commit any offence so included.
2. On a count charging murder, if the evidence proves manslaughter,
but does not prove murder, the jury may find the accused not guilty of
murder but guilty of manslaughter, but shall not on that count find tne
accused guilty of any other offence.
It is not necessary that the lesser offence should be expressly
charged on the face of the indictment. It will be sufficient if the
offence charged must of necessity include it: E. v. Smith, (1874T
34 U. 0. R. 552 ; R. v. Bird, 5 Cox C. C. 20. See E. v Edwards,
(1898) 2 C. C. C. 96.
The information, being the substratum of the magistrate's
jurisdiction and in the nature of an indictment, must contain
a complete statement of the offence; for the evidence can only
support the original charge, but can by no means extend or supply
what is wanting in the information. E. v. Baynes, 2 Salk. 680;
R. V. Wheatman, 1 Doug. 345.
It is proposed to consider the provisions of the Code as to
making complaints and laying informations for indictable offences
and for offences punishable by summary conviction together.
First, taking up informations respecting indictable offences.
" In my opinion to prefer a charge under the Speedy Trial sec-
tions of the Code is preferring a document very analogous to an
indictment.'' Graham, O.J., at p. 184, in E. v. Cross, 14 C. C.
nnrr: —
It is absolutely essential in all proceedings to convict a party
of an offence created or prohibited under a penal statute, that
there should be some information or complaint previously laid ^
before the convicting or some other justice. E. v. Fuller, 1 Ld.
Raym. 509.
A magistrate has no authority to detain a person known to i^^
him till some other person makes a charge against him. R. Bir-
nie, 5 C. & P. 206.
Generally speaking any person may be the informer, but some-
times the statute giving the penalty allows only particular per-
sons to be the informer. Belaud v. Boyce, 21 C. C C. 421, is a
good example of this.
In summary conviction cases, by section 710 of the Code, sub-
sec. 4, every complaint or information may be made or laid by the
complainant or informant in person or by his counsel, or attor-
118 INFORMATIONS FOR INDICTABLE OFFENCES.
ney, or other pereon authorized in that behalf. See R. v. St.
Louis, (1897) 1 C. C. C. at p. 144.
Informations for indictable offences are laid under the pro-
visions of sees. 654 and 655 of the Code. The latter was amended
in 1909 and 1913, giving power to the justice, if he considers it
desirable or necessarj', to hear the evidence of any witness or
witnesses in addition to the allegations of the complainant, and of
compelling them to testify under oath respecting such allegations,
before he makes up his mind that a case has been made out for
issuing a summons or a warrant.
It is only required in criminal matters that the information
should give a concise and legal description of the offence charged,
and that it should contain the same certainty as an indictment.
Of course the description of the charge must include every in-
gredient required by the statute to constitute the offence. The
statement of the offence may be in the words of the enactment
describing it or declaring the transactions charged to be an in-
dictable offence.
It is essential that whatever words are used they should be
sufficient to give the accused notice of the offence with which
.he is charged and to identify the transactions referred to. The
absence or the insufficiency of particulars does not vitiate an in-
dictment or an information ; but, if it should be made to appear
that there is reasonable necessity for more specific information,
the Oourt or magistrate may, on the application of the accused
person, order that further particulars be given, but such an order
is altogether within the judicial discretion of the Judge or magis-
trate. WuRTELE, J., at pp. 328-329, in R. v. France, (1898) 1 C.
C. C. 321, which was approved and folloMjed in JR. v. Lee Chiey, 15
0. L. E. 235.
The information must be in writing and under oath as pro-
vided in section 654. And it must set forth facts disclosing an
offence, and there is no right to issue a warrant where, assuming
the facts sworn to be true, no offence is shewn. Ex p. Boyce, 24
N. B. R. 347.
Where there is a right to arrest without a warrant and after
arrest a written charge, not under oath, is read over to the prigoner,
and the prisoner consents to be tried summarily, the magis-
trate has complete jurisdiction to deal with the case. R. v. Mc-
Lean, (1901) 5 0. C. C. 67. "
Without an information properly laid a justice has no juris-
diction to issue a warrant, and if he does so he is liable in trespass.
INFORMATIONS FOR INDICTABLE OFFENCES. 119
Apphton V. Lepper, 20 C. P. 138; McGuiness v. Dafoe, (1896)
3 C. C. C. 139 ; McCatherin v. Jamer, 21 C. C. C. 116.
If a justice, after an offender is brought before him on a war-
rant, commits him for trial when there is noi prosecution, no ex-
amination of witnesses, and no confession of guilt under the
statute, he is liable in trespass. Appleton v, Lepper, 20 0. P.
138; Connors v. Darling, 23 U. C. E. 541.
To give the magistrate jurisdiction there must be either an
information for a criminal offence, ofr the information must
be waived by the accused. Crawford v. Beattie, 39 U. C. E. at p. /^
26 ; Caudle v. Seymoiur, 1 Q. B. 889 ; R. v. Fletcher, L. E. 1 0. C.
E. 320; or the accused must be in the presence of the magistrate
and while there be charged with the offence, and must then sub-
mit to answer it. R. v. Hughes, 4 Q. B. D. 614.
It matters not by what means the defendant is brought before
the magistrate. If in fact he is present and the magistrate has
jurisdiction over the person and offence he may lawfully proceed
with the hearing. The improper arrest does not go to the juris- ) ^
diction of the magistrate. Ex parte (jHberson, (1»98) 4 u. u. u. 1/^
51)7, and' see McGuiness v. Dafoe, (1896) 3 C. C. C. 139; R. v.
Langlois, 20 C. 0. 0. 183, and Papillo v. R., 20 C. C. C. 329.
See, however. Re Baptiste Paul (No. 2), 20 O. C. C. 161, where
it was held that the illegal arrest vitiated the proceedings if ob-
jected to before the magistrate.
A written information om a preliminary inquiry is for the
protection of the accused, so that he may know the charge against
him; but, if. the magistrate, on being verbally informed of the
offence by the accused himself, issues a summons and the accused
attends on its return, a commitment for trial may be made on the
depositions taken upon the preliminary inquiry without an in-
formation in writing. The committing justice has jurisdiction
over the accused on his attending in answer to the summons, al-
though objection was taken to the want of an information. If a
warrant had issued it would have been different. R. v. Thompson,
(1909) 15 C. C. C. 162.
Where the summons served on defendant recited an informa-
tion as laid after the lapse of the period fixed by a statutory limit-
ation, the accused was held not bound to appear as the summons
showed on its face that the magistrate had no jurisdiction: R. v.
Leblanc, 21 C. C. C. 221.
120 INFORMATIONS FOR INDICTABLE OFFENCES.
Where the justice had issued a warrant of arrest informally
and without oath, the defendant, having no knowledge of this
defect, made no objection to the same at the hearing of the charge.
Held that the irregularity in the process of bringing the defend-
ant before the Court had no effect on the jurisdiction and the
defendant and a person who committed perjury on the hearing
were rightly convicted. R. v. Hughes, (1879) 4 Q. B. D. 614,
and see Gray v. Commissioner of Cusioms. (1884) 48 J. P. 343,
and Ex parte Sonier, 2 C. C. C. 121.
The recital of the information in a warrant is not conclusive
evidence of the information having been laid, and evidence may
be given to shew that as a matter of fact such information was
not kid. Friel v. Ferguson, 15 C. P. a84.
If the information discloses no offence in law it will not
authorise the issue of a warrant by a magistrate, as there is noth-
ing to found his jurisdiction. Stephens v. Stephens, 24 C P.
424; Grimes v. Miller, 23 A. R. 764; Anderson v. Wilson, 25 0.
R. at p. 96 ; McNellis v. Gartshore, 2 0. P. 464 ; B. v. HoUey, 4
C. C. C. 510.
An information for false pretences is not objectionable for
not setting out the false pretences with which the defendant is
charged, if it follows the form in which an indictment for the
same offence may be framed. R. v. Richardson, 8 0. R. 651.
Such irregularities or variances will not affect the validity of any
proceeding at or subsequent to the liearing. See sees. 669, 859
and 863 of the Ck>de.
It is improper for a magistrate to plac-e a legal construction
on the words of the complainant which they do not bear out. For
instance, if the statement of the complainant shews trespass
only, the magistrate should not construe it as an indictable of-
fence or describe it as such in the information. Rogers v. Has-
mrd, 2 A. R. 507.
If by reasonable intendment the information can be read as
disclosing a criminal offence, the rule is so to read it. Latvrenson
V. Hill, 10 Ir. C. L. R. 177, at pp. 194, 195; see Anderson v. Wil-
$o-n, supra.
An information under a Provincial Act, which has been held
void because in conflict with a Dominion Act subsequently passed
dealing with the same subject matter, cannot be amended so as to
set out an offence under the Dominion Act. R. v. Dufresne, 19 C.
C. C. 414.
contents of information. 121
What Information should Contain.
(1) The information should contain the name, address and
occupation of the informer.
(2) The day and year of taking the information and the place
where the same is taken.
(3) The description of the justice who receives the informa-
tion, shewing his name and authority.
(4) The name of the offender, or accused, or some other de-
scription of him or her.
(6) The time and place of the commission of the offence.
(6) The statement of the offence itself.
These several matters will now be shortly considered in their
order.
{l)2Vie name and occupation of the informer nvust be given so
that the accused ma/y Jcnoio who his accuser is.
As we have seen, an information can be laid by anyone for
an indictable offence, sec. 654 of the Code. And by sec. 710, by
the informant in person, or by his counsel, attorney or other per-
son authorised by him in that behalf.
A sworn information merely stating that the complainant
has just cause to suspect and believe and does suspect and believe
that the defendant has committed the offence charged, triable un-
der the Summary Convictions Act, will not authorize a justice to
issue his warrant to arrest in the first instance. It is the duty
of a_justice. before issuing a warrant, to examine upon oath the
complainant or his witnesses as to the facts upon which suspicion
and beiiei" are founded and to exercise his own judgment thereon.
iJx parte Boyce, 24 N. B. E. 347, followed in Ex parte Coffon,
(1905) 11 C. C. C. 48; R. v. Lizotte, (1905) 10 C. C. C. 316, and
Ex parte Grundy, (1906) 12 C. C. C. 65.
" I am of opinion that tliis case is not distinguishable from
R. V. Walker, (13 0. R. 83), that the information, being the basis
of the subsequent proceedings and without w^hich the justice is
not authorized to act, must contain that which the statute con-
templates, namely, " the causes of suspicion whatever they may
be," in order to satisfy the justice that there is reasonable ground
for believing " that there is in the place to be searched " — ■'' any-
thing which there is reasonable ground to believe will afford evi-
dence as to the commission of," the offence charged. Clute^
J., at p. 60, in 7?. v. Kehr, (1906) 11 C. 0. C. 52.
122 CONTENTS OF INFORMATION.
Where there is an absolute positive statement bj the informer
at the time of the laying of the information on oath, before the
magistrate issuing the warrant, of the sale or keeping for sale of
the liquor, that is sufficient. That is a sufficient declaration upon
which to issue a warrant. Hannington, J., at p. 276, in Ex
parte Madden, (1908) 13 C. C. 0. 273.
Section 655 (1) of the Code is applicable under sec. 711 to
an information leading to a summary conviction; and, if the
sworn information be upon mere information and belief of the
deponent without stating the facts upon which such belief is
founded, the justice must examine the informant and decide
whether or not his statements justify the arrest of the accused
before he issues a warrant. R. v. Lorrimer, (1909) 14 C. C. C.
430.
(2) The day and year and place where taken.
The day and year on which an information is exhibited must
be stated therein as well tha/t it may appear to be subsequent to
the offence, and prior to all the other proceedings, as in order
to ascertain that the prosecution is within the time limited by
the particular statute on which it is founded. R. v. Kent, 2 Lord
Kaym. 1546; R. v. Fuller, 1 Idem 510. In R. v. Kent the con-
viction was quashed because the information was set out to be ex-
hibited on 2nd Nov., 1 Geo. II., and the conviction was laid to
be on 2nd Oct., 1 Geo. II.
The place also where the information is stated to be received
must be stated in it, in order to shew that the magistrate at the
time was acting within his jurisdiction. Kite & Lane's case, 1
B. & C. 101.
If a magistrate's summons is issued on an information pur-
porting to have been sworn at a specific time and place, and the
defendant appears thereon and pleads to the charge, the pro-
ceedings will not be quashed on certiorari because it is after-
wards shewn that the information was not in fact sworn at such
time and place. Ex parte Sonier, (1896) 2 0. C. 0. 121.
Where the statutory offence is the furnishing of intoxicating
liquor to a person known to the accused to have been interdicted,
and a time limit is provided for laying information therefor, an
information within the time, but omitting to charge knowledge
of the interdiction, cannot be amended to include such statement
after the expiry of the time limit. The original information in
such case alleges no offence, and is consequently to be treated on
CONTENTS OF INFORMATION. 123
amendment as a new information. R. v. Chtertin, (1909) 15 C.
C. C. 251, and see cases ante, also R. v. Speed, 17 C. C. C. 24,
R. V. O'Connor, 20 O. C. C. 75.
Upon taking an information the magistrate is not bound
to issue a summons or warrant upon the same day, notwith-
standing the words 'Hhis day '^ in the statutory form (5 and 6),
but may take time to consider Whether a case is made out for so
doing. Where a statute provides that information thereunder
shall be laid within a fixed number of days after the offence,
but makes no limitation as to the summons, or other proceedings,
the summons calling upon the accused to answer may be issued
after the period of limitation upon an information taken within
the period. R. v. Hudgins, (1907) 12 C. C. C. 223.
Laying the information is the commencement ol a prosecu-
tion. Thorpe v. Priestnall, [1897] 1 Q. B. 159; R. v. Lennox,
(1878) 34 U. C. E. 28; R. v. Kerr, 26 C. P. 214; R. v. Ettinger,
3 C. C. C. at p. 391.
The justice is required to hear and consider the allegations
in the complaint or information and the issue of the summons
is dependent upon his opinion as to whether or not a case is
made out. This must be held to be a judicial act on the authority
of Hope V. Evered, 17 Q. B. D, 338, and Lea v. Oharrington, 23
Q. B. D. 45, also of Ritchie, J., at pp. 389-90, in R. v. Ettinger,
3 C. C. C. 387, and it is consequently not one of the rights which
a justice may exercise outside the limits of his jurisdiction.
The general rule is that a justice is not liable for any mistake
or error of judgment or for anything he does judicially when
acting within his jurisdiction, though he may be wrong. Gordon
V. Denison, 24 0. E. 576, 22 A. E. 315.
If a justice exceeds the authority given him in his acts even
within his jurisdiction, he thereby subjects himself to an action;
so that, if he commits a prisoner for re-examination for an un-
reasonable time, although he does so from no improper motive,
he is liable to an action for trespass for false imprisonment.
Davis V. Capper, 10 B. & C. 28, and see cases cited in chapter on
Jurisdiction, ante.
The limitations as to time for commencing the prosecution
of criminal offences under the Code, and of actions for penalties
or forfeitures are governed by Part XXIV. of the Code, sections
1140 to 1151.
By section 1142, in the case of offences punishable on summary
conviction, if no time is specially limited for making any complaint
124 TIME WITHIN WHICH INFORMATION LAID.
or laying any information in the Act or law relating to the parti-
cular case, the complaint shall be made or information laid within
six months from the time when the matter of the complaint or in-
formation arose, except in the North-West Territories and the
Yukon Territory, where the time is extended to twelve months.
The pro-visions of this section apply only to cases arising and
in which proceedings have been taken under the summary con-
viction sections of the Oode. Where a man was indicted for rape
and the jury found him guilt}" of common assault only, it was
objected that there could be no conviction for common assault
as the complaint was not made or information laid within six
months from the time when the matter of complaint or informa-
tion arose. It was held that, the indictment being for rape and
it being assumed that the information or complaint was one
charging the same offence, there can be no pretence that the
offence charged was " an offence punishable on summary con-
viction," or one that could be tried under the provisions of the
Code relating to summary convictions. R. v. Edwards, (1898)
2 C. C. C. 96, and see R. v. McKinnon, 5 C. C. C. 301 ; R. v.
Lee How, (1901) 4 C. C. 0. 551; R. v. Boutilier, (1904) 8 0. C.
C. 82: R. V. Adams, (1892) 24 N". S. E. 559.
As it did not appear by the information that it was laid
within six months after the commission of the offence, or that
the defendant had committed the offence within six months pre-
vious to its being laid . , . the magistrate was acting with-
out jurisdiction, and should be prohibited from proceeding fur-
ther in the matter. R. v. Breen, (1904) 8 C. C. C. 146; and see
Paley, 8ih ed., p. 60, and cases there cited. See also R. v. OlarTc,
(1906) 12 C, C. C, 485, and cases there cited, and In re Fisher v.
r/ifl Village of Carman, (1905) 15 M. E. 475.
Where the law requires that a prosecution shall be c-ommenced
within a limited time after the commission of the offence, it is
sufficient if the information is laid within that time. R. v.
Barrett, 1 Salk. 383.
But when the law provides that a person shall l>e convicted
within a stated time after the commission of the offence, the
mere laying of the information within that time will not suffice;
the conviction itself must be made within the time limited or it
will be void. R. v. Mainwaring, 27 L, J, M, 0, 278.
Where the time of the offence is stated in a summary con-
viction as being between two dates and includes a period prior
DESCRIPTION OF JUSTICE IN INFORMATION. 125
to the time limit within which information could be laid, the con-
viction will be quashed for want of jurisdiction if the evidence does
not shew that the offence was in fact committed within the time
limit. Ex parte Hehert, (1908) 15 C. C. C. 165.
(3) The description of the justice who receives the information,
shewing his name and authority.
The information must be laid before a magistrate having
jurisdiction over the subject-matter of the charge. R. v. D aiding,
(1889) 17 0. E. 698, and see sections 577, 653, 654 of the Code.
One justice is competent to receive it except, as it seems,
when the statue on which the information is founded expressly
requires it to be laid before two justices. See section 708 of the
Oode.
The authority of justices of the peace appointed by commis-
Bion from the Crown is limited to the respective counties therein
specified, and that of the magistrates in separate jurisdiction
is confined to their respective districts : it is in no case attached
fco the person so as to be capable of being exerted elsewhere than
within those limits.
They can only exercise their powers while they are themselves
within the limits of their district. But they may exercise acts
that are purely ministerial, such as taking recognizances, etc.,
elsewhere than within their county. Any judicial act done and
performed by them is utterly void unless done within their dis-
trict, except where it is otherwise specially provided' by statute.
And, since the decision of Ritchie, J., in R. v. Ettinger, supra,
that under the provisions of sec. 655 the taking of an information
for an indictable offence is a judicial act, a justice should never
receive an information outside the limits of his jurisdiction.
If anything is directed to be done, by or before a magistrate or
justice of the peace, it shall be done by or before one whose juris-
diction or powers extend to the place where such thing is to be
done. R. v. Beemer, 15 0. R. 266, and see R. v. Fearman, 23
0. R. 456.
See the chapter on " Jurisdiction of Justices," and cases there
cited, ante, pages 73, 74, and see Paley, 8th ed., p. 211.
The Interpretation Act, R. S. C. (1906), cap. 1, sec. 31, con-
tains general provisions as to the jurisdiction of magistrates and
justices of the peace as follows : —
31. In every Act. unless the contrary intention appears, —
(a) if anything is directed to be done by or before a magistrate or
a justice of the peace, or other public functionary or officer, it
126 NAME OF OFFENDER TO BE STATED.
shall be done by or before one whose jurisdiction or powers extend
to the place where such thing is to be done ;
(b) whenever power is given to any person, officer or functionary, to
do or enforce the doing of any act or thing, all such powers shall
be understood to be also given as are necessary to enable such
person, officer or functionary to do or enforce the doing of such
act or thing ;
(c) when any act or thing is required to be done by more than two
persons, a majority of them may do it;
See further sections 584, 653 and 707 of the Code as to the
jurisdiction of magistrates.
(4) The name of the offender or accused or some other descrip-
tion of him or her.
If there are several offenders each must be named.
Apart from statutory provisions, no man is to escape because
his name is not known, and if he refuses to disclose it he may
be described as a person whose name is unknown to the magis-
trate and identified by some fact; for instance that he is person-
ally brought before him by a certain constable.
In like manner the name of the person or persons aggrieved
should be accurately stated if known, and if not it should be so
stated. Foley, 8th ed., 211, and cases there cited.
In summary convictions it is no longer necessary to the valid-
ity of the information, and the same shall not be deemed objec-
tionable or insuflBcient because it " does not contain the name of
the person injured, or intended or attempted to be injured." See
sec. 723 (a) of the Oode.
(5) The time and place of the commission of the offence.
It is not necessary that the time should be laid according to
the truth, for if it be stated previously to the finding of the in-
dictment, and the place be within the county, or to the extent
of the Court's jurisdiction, a variance between the indictment
and evidence m time when the offence was committed will not
2 Inst. 318. — —
It is, however, necessary to state the day and year according
to the fact where the precise date of a iac^ is a necessary ingre-
dient iii tll5 <^hence. U. y. Treliarne, 1 Moo. (J. 0. 298. '
It is not necessary to mention the hour in an indictment (2
Hawk., ch, 25, sec. 76) ; and if it be stated no exception is allowed
to it, except in cases of burglary, when it must be laid for the
purpose of shewing that the offence was committed in the night
time.
TIME AND PLACE OF OFFENCE. 127
Though the day, or year, be mistaken in the indictment, yet
if the offence were committed in the same county, though at an-
other time, the offender ought to be found guilty, 2 Hale, 179.
A conviction for selling liquor in violation of law on the 24th
or 25th days of December, both dates inclusive, is good. Ex parte
Teed, 21 C. C. C. 255.
A justice has no jurisdiction to issue a warrant, under Code
sec. 653, upon an information which does not state either the
place where the offence was committed, or that the offence is
indictable and triable in the Province: Campbell v. Walsh, 18 C.
C. C. 304.
As to the necessity of defining the place where an offence was
committed see, further, at pages 129 et seq., where the subject is
more fully discussed.
By sec. 128 of " The Criminal Procedure Act," ch. 174, E. S.
C. 1886, it was provided that no indictment should be held to be
insufficient for omitting to state the time at which any offence
was oommitted, in any case where time is not of the essence of
the offence, or for stating the time imperfectly, or for stating the
offence to have been committed on a day subsequent to the find-
ing of the indictment or on an impossible day, or on a day that
never happened. These provisions were taken from the Imperial
Act, 14 & 15 Vic, ch. 100, sec. 24. They were not re-enacted in*
the Code ipsissima verba, but are presumably included in and
covered by sections 852, 853. Section 855 provides that no count
shall be deemed objectionable or insufficient for the reason only
that certain statements which are enumerated are not contained
in the count. Amongst these we find no reference to time. In
fact in none of these sections, nor in section 859 relating to par-
ticulars, is time referred to. Sections 852, 853, 854 and 855 en-
act as follows: —
They are printed here because many of their provisions are
helpful in preparing informations for indictable offences.
General Provisions as to Counts.
852. Every count of an indictment shall contain, and shall be suflS-
cient if it contains in substance, a statement that the accused has com-
mitted some indictable offence therein specified.
2. Such statement may be made in popular language without any
technical averments or any allegations of matter not essential to "be
proved.
3. Such statement may be in the word^ of the enactment describing
the offence or declaring the matter charged to be an indictable offence, or
in any words sufficient to give the accused notice of the offence with which
he is charged.
4. Form 64 affords examples of the manner of stating offences.
12S FRAMING OF COUNTS IN INDICTMENTS.
853. Every count of an indictment shall contain so much detail of
the circumstances of the alleged offence as is sufficient to give the ac-
cused reasonable information as to the act or omission to be proved
against him, and to identify the transaction referred to : Provided that the
absence or insufficiency of such details ?hall not vitiate the count.
2. A count may refer to any section or subsection of any statute
creating the offence charged therein, and in estimating the sufficiency of
such count the Court shall have regard to such reference.
3. Every count shall in general apply only to a single transaction.
854. A count shall not be deemed objectionable on the ground that
it charges in the alternative several different matters, acts or omissions
which are stated in the alternative in the enactment describing any in-
dictable offence or declaring the matters, acts or omissions charged to be
an indictable offence, or on the ground that it is double or multifarious.
855. No count shall be deemed objectionable or insufficient for the
reason only, —
(a) that it does not contain the name of the person injured, or in-
tended, or attempted to be injured ; or
(5) that it does not state who is the owner of any property therein
mentioned ; or,
(c) that it charges an intent to defraud without naming or describing
the person whom it was intended to defraud ; or,
(d) that it does not set out any document which may be the subject
of the charge ; or,
(e) that it does not set out the words used where words used are the
subject of the charge ; or,
(/) that it does not specify the means by which the offence was com-
mitted ; or,
(g) that it does not name or describe with precision any person, place
or thing ; or,
(h) that it does not, in cases where the consent of any person, official
or authority is required before a prosecution can be instituted, state
that such consent has been obtained.
2. No provision contained in this Part as to matters which are not
to render any count objectionable or insufficient shall be construed as res-
tricting or limiting in any way the general provisions of sections eight
hundred and fifty-'two and eight hundred and fifty-three.
Amongst the " details of circumstances " mentioned in sec.
853, the time should be given in all cases where it is of the essence
of the offence.
The evidence must support the charge by proof of every ma-
terial fact, assigning a specific date and place to the offence.
Any variance between the information and the evidence ad-
duced in support thereof as to the parish or township, in which
the offence is alleged to have been committed, is not to be deemed
material, provided it be proved to have been committed within
the jurisdiction of the justices hearing the information, Paley,
8th ed., 138, 139.
On the ground that the magistrate's jurisdiction is limited
in local extent, the place where the offence was committed should
be stated in the conviction as well as proved by the evidenccj
in order that the complaint may be one over which the magis-
trate's cognizance extends. The reports of cases applicable to
OMISSIONS NOT FATAL TO INFORM ATIOXS. 129
this point, as well as the direction in the statutory form, establish
that the facts which form the subject of the conviction must
appear to have arisen at some place within the jurisdiction of
the convicting magistrate. Paley, 8th ed., p. 216.
An application to quash a conviction for selling liquor, con-
trary to se€. 130 of the Liqiuor Act of Manitoba, was made on
the ground that the conviction did not shew where tJie offence
had been committed or that it had been committed in Manitoba.
Mathers, J. : " It is a well known principle that the jurisdic-
tion of an inferior court must "appear on the face of the proceed-
ings or it will be presumed to have acted without jurisdiction."
Johnston v. O'Reilly, (1906) 13 C. C. 0. 319. See Re Don-
nelley, 20 C. P. 165; R. v. Spain, (1889) 18 0. K. 385; R. v.
Shepherd, (1902) 6 C. C. C. 463; 9 Am. & Eng. Encyc. 536, and
R. V. Picard, 21 C. 0. C. 350. See also sees. 577, 653 and 665 of
the Code and the chapter on jurisdiction, ante, page 73.
If a particular locality be an ingredient in the offence charged
the information must define the requisite locality by express alle-
gation. R. V. Jarrald, 33 L. J. M. 0. 258.
Courts and magistrates are indeed bound ex officio to take
notice of the known divisions of the Kingdom as to whether such
a place is within or without the bills of mortality. R. v. St.
Maurice, 16 Q. B. 908, But not so for the local situation and dis-
tances of different places in the counties from each other. Dey-
helVs Case, 4 B. & Aid. 343 ; R. v. Edwards, 1 East. 379 ; Thorne
V. Jackson, 3 C. B. 661.
A conviction by a justice of the peace shewed on its face
that the offence was " committed at Pincher Creek in the said
Province," following the words of the information. The caption
in the information and in the conviction mentioned the Province
of Alberta. Pincher Creek is in the Province of Alberta, but this
was not disclosed in the evidence. Held, that judicial notice
can be taken of such a fact of local geography and that the con-
viction was not invalid for want of jurisdiction. R. v. C. P. Ry.
Co., (1908) 8 W. L. E. 825, 1 Alta. L. E. 341, 14 C. C. C. 1.
An allegation of the place of the offence is a material one
and necessary to be proved to confer jurisdiction where the ac-
cused was not found or apprehended in the same county in which
the trial is to take place. R. v. O'Gorman, (1909) 15 C. 0. C.
173.
c.c.p. — 9
130 LOCAL DESCRIPTIOX IX INFORMATIONS.
By section 844 of the Code it is not necessarj' to state any
venue in the bod}"' of any indictment, and the district, county or
place named in the margin thereof shall be the venue for all the
facts stated in the body of the indictment, (2) If local descrip-
tion is required such local description shall be given in the body
of the indictment.
The word " venue " in this section means the place where the
crime is charged to have been committed. Killam, J., in Smithe-
man v. The King, (1905) 9 C. C. C. 17, 35 S. 0. E. 490.
By sec. 2, sub-sec. (16) "indictment" and "count" respec-
tively include information and presentment as well as indictment,
etc. "^See R. v. Coolen, (1904) 8 0. C. C. 157.
It would thus appear that stating the place in the margin
of the information would be suflBcient, and it need not be set
out in the bod}- of the information, except as provided by sec.
844 (2), if local description is required.
There are several cases in which local description is required
to be set out in the body of the information or indictment, for
instance: (a) Burglary, R. v. St. John, 9 C. ^ P. 40; (6) House-
breaking, R. V. Bullock, cited in 1 Mood. 324n; (c) Stealing in
a dwelling-house, R. v. Napper, 1 Mood. 44; (d) Being found by
night armed with intent to break into a dwelling, &c., and to
commit felony therein, R. v. Jarrold, L. & C. 301, 32 L. J. M. C.
258; (e) Sacrilege, Arch. C. Prac. 24th ed., 707: (/) Riotously
demolishing churches, houses, machinery, &c., R. v. Richards, 1
M. & Bob. 177; {g) Maliciously firing a dwelling-house, perhaps
an out-house, but not a stack, R. v. Woodward, 1 Mood. 0. C.
323; {h) Forcible entry, 2 Leon. 186; (t) Xuisance to highways,
R. V. Steventon, 1 C. & K. 55 ; (;*) Malicious injuries to sea banks,
mill dams or other local property, 1 Taylor Ev., 268, 10th edition.
There are also some other exceptions to what may now be
considered as the general rules that the statement of time and
place in an indictment is unnecessary, and that the omission of it
or any mistake respecting it is immaterial. 1. The dates of bills
of exchange and other written instruments must be truly stated
when necessarily set out. 2. Deeds must be pleaded either accord-
ing to the date they bear, or to the day on which they were de-
livered. 3. If any time stated in the indictment is to be proved
by matter of record, it must be truly stated. 4. If the precise
date of a fact be a necessary ingredient it must be truly stated :
see i?. V. Treharne, 1 Moody C. 0. 298. 5. If the statute on
which the indictment is framed gives the penalty to the poor
DESCRIPTION OF LOCALITY OF OFFENCE. 131
of the parish in which the offender was committed, the parish
must be truly stated. 6. Where a place named is part of the de-
scription of a written instrument, or is to be proved by matter
of record, it must be truly stated. 7. If the place where the fact
occurred be a necessary ingredient in the offence, it must be
truly stated, and any variance in these several respects between
the indictment and the evidence will be fatal and the defendant
must be acquitted unless the variance be amended, at the trial.
Where a place is required to be stated a^ a matter of local
description any variance between the description of it in the
indictment and the evidence would, unless amended, be fatal.
Thus for instance in indictments for stealing in a dwelling-
house, etc., for burglary, for arson, or for forcible entry or the
like, if there be any variance between the indictment and evidence
in the name of the parish or place where the house is situate, or
in any other description given of it, it will be fatal unless
amended. See Archbold's Plea, and Evi., 24th ed. (1910), p. 60.
As to variance and amendment of indictments, see sees. i889 to 893
of the Code.
Where the offence is begun in one county and completed in
another the venue may be laid in either county. R. v, Murdock,
21 L. J. M. C. 22, R. V. Taylor, 3 Bos. & P. 596 ; Code, sec. 584.
A person summoned but not arrested' for trespassing on a
railway track is not liable to be tried elsewhere than in the
local jurisdiction wherein the offence was committed. R. v.
Hughes, (1895) 2 C. C. C. 332.
By section 584 of the Code offences committed on water be-
tween two or more magisterial jurisdictions or near the bound-
ary between jurisdictions and in respect to mail or vehicles or ves-
sels passing through several jurisdictions, may be considered as
having been committed in any one of such jurisdictions. See
R. V. Burlce, (1900) 5 C. C. C. 29. R. v. Hughes, supra.
Special Jurisdiction.
584. For the purposes of this Act, —
(a) where the offence is committed in or upon any water, tidal or
other, or upon any bridge, between two or more magisterial juris-
dictions, such offence may be considered as having been committed
in either of such jurisdictions ;
(6) where the offence is committed on the boundary of two or more
magisterial jurisdictions or within the distance of five hundred yards
from any such boundary, or is begun within one magisterial juris-
diction and completed within another, such offence may be con-
sidered as having been committed in any one of such jurisdictions ;
132 OFFENCES COMMITTED OUTSIDE JURISDICTION.
(c) where the offence is committed on or in respect to a mail, or a
person conveying a post letter bag, post letter or anything sent by
post, or on any person, or in respect of any property, in or upon
any vehicle employed in a journey, or on board any vessel em-
ployed on any navigable river, canal or other inland navigation,
the person accused shall be considered as having committed such
offence in any magisterial jurisdiction through which such vehicle
or vessel passed in the course of the journey or voyage during
which the offence was committed ; and where the centre or other
part of the road, or any navigable river, canal or other inland navi-
gation along which the vehicle or vessel passed in the course of such
journey or voyage, is the boundary of two or more magisterial juris-
dictions, the person accused of having committed the offence may
be considered as having committed it in any one of such jurisdic-
tions.
For offences committed on the high seas see sec. 656; and for
desertion from His Majesty's service, see sec. 657. These sec-
tions will be dealt with later on.
By sec. 591 of the Codie it is provided: —
591. Proceedings for the trial and punishment of a person who is not
a subject of His Majesty, and who is charged with any offence committed
within the jurisdiction of the Admiralty of England, shall not be instituted
in any Court in Canada except with the leave of the Governor-General,
and on his certificate that it is expedient that such proceedings should be
instituted.
This section does not prevent a magistrate from proceeding
with the preliminary hearing of an indictable offence without
the leave of the Governor-General. R. v. Tano, 14 C. C. C. 440.
The great inland lakes of Canada are within the Admiralty
jurisdiction, and offences committed on them are as though com-
mitted on the high seas, and any magistrate of this Province
(Ontario) has authority to incjuire into offences committed on
said lakes although in American waters. R. v. Sharpe, 5 P. E.
135. See, also, R. v. Cody, 23 C. C. C. 211.
By sec. 855 (h) of the Oode, no count shall be deemed objec-
tionable or insufficient, in cases where the consent of any person,
official or authority is required before a prosecution can be insti-
tuted, because it does not state that such consent has been obtained.
(6) The statement of the offence itself.
We have seen by sec. 852 of the Cbde that a count in an in-
dictment will be sufficient if it contains a statement that the
accused has committed one of the indictable offences therein speci-
fied. Such statement may be made in popular language without
any technical averments of matter not essential to be proved, and
such statement may be in the words of the enactment describing
the offence or declaring the matter charged to be an indictable
offence ... or in any words sufficient to give the accused
notice of the offence with which he is charged. See Form 64.
DEFECTS AND OBJECTIONS. 133
Each count of an indictment must contain a statement of all
the essential ingredients which constitute an offence. R. v. Weir
(Ko. 5), (1900) 3 C. C. C. 499.
Every count shall in general apply only to a single transac-
tion. See sec. 853 (3).
Section 723 of the Code contains the provisions relating to
defects and objections in informations, warrants, &c., issued under
Part XY. relating to Summary Convictions, as follows: —
Defects and Objections.
723. No information, complaint, warrant, conviction or other pro-
ceeding under this Part shall be deemed objectionable or insuflScient on
any of the following grounds that is to say, — ■
(o) that it does not contain the name of the person injured, or in-
tended or attempted to be injured ; or,
(6) that it does not state who is the owner of any property therein
mentioned ; or,
(c) that it does not specify the means by which the offence was com-
mitted ; or,
((Z) that it does not name or describe with precision any person or
thing.
2. The justice may, if satisfied that it is necessary for a fair trial,
order that a particular, further describing such means, person, place or
thing, be furnished by the prosecutor.
3. The description of any offence in the words of the Act or any order,
by-law, regulation or other document creating the offence, or any similar
words, shall be sufficient in law.
In the subject under discussion, the provisions of sub-sec. 3
of sec. 723 are especially material. These provisions of sec.
723 are taken from the Imperial Act, 11 and 12 Vic, ch. 43.
Before this Act, the information must have contained an exact
description of the offence. And now, where 11 and 12 Vic, ch.
43, is not applied and the information is recited in the convic-
tion, a direct and positive charge must be stated against the de-
fendant; it does not suffice to state merely facts amounting to a
presumption of guilt, however sufficient such facts may be as
prima facie evidence against him. Thus where the charge in an
information (under the 8 Anne, ch. 18, sec. 3, for selling bread
under the size) was that the bread wanting so much weight was
bought in the shop of the defendant, it was held that the charge
ought to have been more direct, viz., of the sale of so much bread
hy the defendant; for, though the fact of a servant selling in his
master's shop is good evidence against the master, still it is
only evidence, and what is evidence merely is not enough to be
laid in the information. R. v. Bradley, 10 Mod. 155. All the
facts necessary to support the proceeding must be expressly
alleged and not left to be gathered by inference or intendment.
The description of the charge must include in express terms every
134 DEFECTS AND OBJECTIONS.
ingredient required by the statute to constitute the offence, for
nothing must be left for intendment or inference or argument
for helping out the description. R. v. Juices, 8 T. E. 536; R. v.
Fuller, 1 Ld. Eaym. 509 ; R. v. Trelawney, 1 T. E. 222.
A statement of the offence by way of recital will not do. R.
V. Crowhurst, 2 Ld. Eaym. 1363. It must not be stated in the
alternative or disjunctive. A conviction on the 6 Geo. lY., c.
108, s. 49, for being on board a boat liable to forfeiture by eec. 3,
and having casks attached thereto " of the description used, or
intended to be used for the smuggling of spirits," was held bad,
Ex parte Pain, 5 B. & C 251. It must not be stated in an argu-
mentative way.
The information must not charge more than one offence in
the same count, otherwise it will be bad for duplicity. Thus a
conviction under 11 Geo. IV. & 1 Will. IV., c. 64, for keeping a
house open for the sale of beer, and selling beer and suffering it
to be drunk on the premises at a time of day prohibited by an
order of justices, and fining the party charged in a single penalty
for " the offence," was held bad as charging more than one dis-
tinct offence. Newman v. Bendyshe, 10 A. & E. 11, See sec. 710
of the Oode, sub-sec. 3, " Ever}' information shall be for one
offence only, and not for two or more offences."
An information in a summary trial proceeding under Part
XVI. of the Code is, by sec. 2 (16), to be considered as a " count"
or " indictment " as regards formal and other objections cured
by the general provisions as to counts (Code, sees. 852-858), and
such information is not objectionable on the ground that it
charges in the alternative several different matters, acts or omis-
sions, which are stated in the alternative in the statute by which
the offence is defined. R. v. Mah Sam, 19 C. C. 0. 1.
A person cannot be charged with one offence and convicted
of two offences. R. v. Farrar, 1 Ter. L. E. 308.
If objection is taken before the magistrate, all but one charge
should be struck out, and evidence heard as to that one only. R.
V. Alward, (1894) 25 0. E. 519.
In my opinion, it was the duty of the justice, when the objec-
tion was taken, to have amended the information by striking out
all but one of the charges and to have heard the evidence upon
that charge only. The fact that he overruled the objection, and
proceeded to hear the evidence upon the three charges, renders
the conviction void. Scott, J., in 7?. v. Austin, (1905) 10 C. C.
C. 34.
DEFECTS AND OBJECTIONS. 135
A conviction for keeping a house of ill-fame on a date named, \y
^' and on ottier 'clan's and times before that day/' is sufiSciently
certain ae to time and does not constitute a charge of a distinct
ofEence upon each of those days. R. v. Williams, ( 1.876) 37 u. C
K. 540; Unley \. Gee, 30 L. J. M. C. 232.
The information charged that the defendant, '' within the
space of 30 days last past, to wit, on the 30th and 31st day of
July, 1892," did unlawfully sell liquor. The Court was divided
in opinion as to whether the information charged two several
offences, or only the single offence of selling unlawfully within
the thirty days ; it was held that the defect was one " in substance
and form " within the meaning of sec. 847 (now 724) and did
not invalidate an otherwise valid conviction for a single offence.
R. v. Hazen, (1893) 20 A. E. 633.
In drawing an information or indictment, under sec. 517 of
the Ck)de (injuries to railways), it is not sufficient to allege that
the accused '' did unlawfully in a manner likely to cause danger
to valuable property without endangering life or person do an
unlawful act" without giving some particulars shewing in what
the alleged unlawful act consisted; and sueh an information or
indictment is bad as not disclosing any offence. R. v. Porte,
(1908) 18 M. R 222, 14 C. C. C. 238.
In the informatiorr, the charge must be set out in such distinct
terms that the accused may know exactly what he has to answer,
for the accused cannot be convicted of a different offence from
that contained in the information. Martin v. Pridgeon, 2^ L.
J. M. 0. 179.
A concise and legal description of the offence should be given.
R. V. France, 1 C. C. C. 321.
A variation from the precise words of the statute is not fatal i/
ij the words used are such as bring the case within the plain mean-_
mg of the statute. Fanning v. Gougli, 18 C. C. C. 66.
Now every count of an indictment must contain a statement of
all the essential ingredients which together constitute the offence
with which an accused person is charged, and any omission of
any such essential ingredient renders an indictment or a count
ineffectual, as no verdict and judgment can be founded on it, con-
sequentl}'' such omission renders the indictment or count null and
void. A formal defect or an imperfect averment in an indict-
ment or in a count may be corrected by the Court when an objec-
tion is raised, but matters of substance cannot be amended^ and
136 DEFECTS AND OBJECTIONS.
essential allegations which have been entirely omitted cannot be
added by the Court. Wurtele, J., at p. 503, in R. v. Weir (No.
5), 3 C. C. 0. 499.
The informant, having with him a collie dog, was passing the
house of the accused, when the accused and his son claimed the
dog as theirs, and took possession of it. The informant went to
a magistrate and stated the facts of the case to him, and the
magistrate drew an information stating that the accused did on
that day "unlawfully have and keep in his possession and take
away a black collie dog . . . the property of the oomplain-
ant,'' which was sworn to by the informant, and upon it the magis-
trate issued a search warrant and delivered it to a constable who
took the dog out of possession of the accused. The constable then
laid an information against the accused charging that he "un-
lawfully did have and keep in his possession a black collie dog,
the property of W. H. W."
Summons was issued and both parties appeared before the
magistrate, with their counsel and witnesses. The counsel for
the accused objected to the information and summons for that
they did not charge the accused with any offence, whereupon, at
the request of the informant and his counsel, the information was
amended by inserting after the words "unlawfully did" the
words ^' steal and take away and," After hearing witnesses and
the parties, the magistrate dismissed the charge. The accused
brought an action against the informant for malicious prosecu-
tion ; at the trial, the Judge withdrew the case from the jur}' and
entered a non-suit upon the ground that reasonable and probable
cause had been shewn. On appeal, the Divisional Court set aside
the judgment and granted a new triaJ. " The defendant (inform-
ant) having merely stated the facts of the case to the magistrate
and havings as it is admitted, stated- them fairly, is not liable in
damages for the erroneous view of the magistrate that he had
jurisdiction to issue a search warrant, nor for the subsequent
action of the magistrate in summoning the plaintiff before him
in order, apparently, to dispose of the question as to the property
in the dog. But, when the proceedings began before the magis-
trate, the plaintiff's counsel pointed out that no criminal offence
was charged, and that the magistrate had, therefore, no jurisdic-
tion; there is evidence that the defendant assented to the altera-
tion in the information which then distinctly charged the plaintiff
with the crime of theft and to the prosecution of the plaintiff on
that charge .. . In m)" opinion, the learned Judge should
DEFECTS AND OBJECTIONS. 137
have left the case to the Jury, telling them that, if they found
that the defendant had authorized the charge of theft, and if he
honestly believed, at the time of the proceedings before the magis-
trate when the information was amended, that the plaintiff had
stolen his dog, they should find for the defendant, otherwise they
should find for the plaintiff." Street, J., at pp. 62, 63, in Pring
V. Wijatt, (1903) 7 C. C. C. 60.
An information charging that the plaintiff did " abstract from
the table in the house of John Evans a paper being a valuable
security for money," does not charge an indictable offence. Smith
v. Evans, 13 0. P. 60.
An information that " the said Ellen Kennedy has the key of
a house in her possession, the property of the complainant/' con-
tains nothing which by reasonable intendment can be construed
as charging a criminal offence. Lawrenson v. Hill, 10 Ir. C. L.
E. 177. See, also. Re Chitnita, 22 O. C. 0. 344.
An information which stated that A. B. had neglected to re-
turn a gun which had been lent to him, and for which he had been
repeatedly asked, was not construed as charging criminality. Mc-
Donald V. Bulwer, 11 L. T. 37.
An information charging that the plaintiff " came to my house
and sold me a promissory note for the amount of ninety dollars,
purporting to be made against J. M. in favour of F. A., and I
find out the said note to be a forgery," sufficiently imports that
the plaintiff had uttered the forged note knowing it to be forged,
to give the magistrate jurisdiction to issue a warrant of arrest.
Anderson v. Wilson, 25 0. E. 91.
Every indictment must be framed with certainty, so as to
clearly identify the accusation, and, as a general rule, the name
of the person against whom an offence has been committed should
be given and any property which has been the subject of an offence
should be described. But in certain cases a crime might go un-
punished if it should be impossible to give the name of the party
against whom the crime has been committed, and, in such cases, it
is sufficient, as an exception to the general rule, for the grand jury-
to state that it has been committed against a person to the jurors
unknown. ... In the present case, the indictment is conse-
quently valid, as it was sufficient to allege that the prisoner at-
tempted to steal from the person of an unknown person. WuR-
TELE, X, at pp. 91, 92, in R. v. Taylor, (1895) 5 C. C. C. 89.
138 DEFECTS AND OBJECTIONS.
Both by common law and under art. 64 (now sec. 72) of
the Criminal Code, every attempt to commit an indictable offence
is an indictable offence and the indictment sets out clearly an
attempt to steal. Ibid., p. 93,
An indictment should describe the offence charged with such
particularity as will inform the accused of the specific acts for
which he is called upon to answer. The indictment merely staled
the offence in the language of the section of the Code, and did
not set out the particular facts constituting the offence and was
quashed. R. v. Bechwith, (1903) 7 C. 0. C, 450.
SUMMONS AND WARRANT OF ARREST. 139
CHAPTER VI.
Summons and Warrant of Arrest.
Indictable Offences and Summary Convictions.
653. Evqry justice may issue a warrant or summons as hereinafter
mentioned to compel the attendance of an accused person before him, for
the purpose of preliminary inquiry in any of the following cases :
(o) If such person is accused of having committed in any place what-
ever an indictable offence triable in the province in which such jus>-
tice resides, and is, or is suspected to be, within the limits over
which such justice has jurisdiction or resides or is suspected to
reside within such limits ;
(6) If such person, wherever he may be, is accused of having com-
mitted an indictable offence within such limits;
(c) If such person is alleged to have anywhere unlawfully received
property which was unlawfully obtained within such limits;
(d) If such person has in his possession, within such limits, any
stolen property.
Under this section of the Code, we have to deal with sum-
monses or warrants issued for the purpose of preliminary inquiry
in indictable offences. And, by see, 711 of the Code, it is provided
that the provisions of this part (Part XIII.) and of Part XIV.
" relating to compelling the appearance of the accused before the
justices receiving an information for an indictable offence and the
provisions respecting the attendance of witnesses on a preliminary
inquiry and the taking of evidence thereon, shall, so far as the
samq are applicable, except as varied by the sections immediately
to follow, apply to any hearing under the provisions of this Part
(XV.). Provided that, whenever a warrant is issued in the first
instance against a person charged with an offence punishable under
the provisions of this Part, the justice issuing it shall furnish a
copy or copies thereof, and cause a copy to be served on the person
arrested at the time of such arrest."
We will, therefore, in this chapter consider generally the issu-
ing of warrants or summonses under both parte of the Code and
for all offences : —
The distinction between indictable offences and those dealt
with under the Summary Conviction Clauses, Part XV., has been
referred to previously as defined by sec. 2i8 of ch. 1, E. S. C,
1906, " The Interpretation Act."
Under sec. 653 of the Code, it is provided that the justice may
issue his warrant or summons to compel the attendance of the
accused person before him : —
140 ISSUE OF WAKEANTS OF ARREST.
(1) If the indictable offence, although committed "in any
place whatever/' is triable in the province in which the justice
resides, and if such person is or is suspected to be, or resides or
is suspected to reside within the limits over which the justice has
jurisdiction. It, therefore, makes no difference where the offence
was committed, so long as it is within the province in which the
justice presides and is triable there. His jurisdiction does not
extend outside the province for which he has been commissioned
a justice. But the accused must be, or suspected to be, within the
limits, or reside, or suspected to reside, within the limits over
which the justice issuing the warrant has jurisdiction at the time
the same is issued.
There is no jurisdiction to issue a warrant upon an informa-
tion which does not state either the plaxje where the offence was
committed or that the offence is indictable and triable in the pro-
vince. Campbell v. Walsh, 18 C. C. C. 304.
An accused person brought before a justice, charged with an
offence committed out of the limits of the justice, is dealt with
under the provisions of sec. 665 of the Code. The justice, after
hearing both sides, may order the accused at any stage of the
inquiry to be taken by a constable before some justice having
jurisdiction in the place where the offence was committed. This,
however, is permissive only. See R. v. BurJce, (1900) 5 C. C. C.
29. The justice need not exercise this jurisdiction unless he
wishes to, but may proceed to hold and complete the preliminary
inquiry.
(2) The second provision of sec. 653, (b), provides for the
apprehension of accused persons wherever they may be, who have
committed an indictable offence " within " the limits over which
the justice has jurisdiction. If such person against whom any
warrant has been issued cannot be found within the jurisdiction
of the justice who issued the warrant, then such warrant may
be endorsed by any justice in Canada within whose jurisdiction
the accused is or is suspected to be.
After endorsement, the warrant can be executed and the person
apprehended whenever found within the territorial division where
the warrant has been so endorsed. See sec. 662 as to endorse-
ment of warrants and requirements respecting the same.
By the amendments of 1909, a further provision has been made
by adding sub-sec. (4) to sec. 662, providing for the apprehension
uf a person, under a backed warrant, who is in any prison within
the province where the warrant is backed.
ISSUE OF WARRANTS OF ARREST. 141
By sec. 629a, added by the amendment of 1909 to the Code,
a search warrant may now b© backed and executed outside the
jurisdiction of the justice who issued the same.
(3) Sub-sec. (c) covers the case of receiving stolen property,
no matter where unlawfully received, if such property has been
unlawfully obtained within the limits over which the justice has
jurisdiction.
(4) If such person has any stolen property in his possession
while residing or being within such limits.
The issuing of a summons, so as to notify the person accused
of the accusation against him, is founded upon the rules of natural
justice, one of which is that the accused should have an oppor-
tunity of being heard before he is condemned. E. v. Simpson, 10
Mod. 379; R. v. Dyer, 1 Salk. 181.
" The laws of God and man both give a party an opportunity
to make his defence, if he has any. I remember to have heard
it observed by a very learned man on one occasion that even God
himself did not pass sentence upon Adam before he was called
upon to make his defence," Per Fortescue, J., in R. v. Cam-
bridge, 1 Stra. 557, at p. 567.
No proposition can be more clearly established " than that a
man cannot incur loss of liberty or property for an offence by a
judicial proceeding until he has had a fair opportunity of answer-
ing the charge against him unless, indeed, the legislature has ex-
pressly or impliedly given an authority to act without that neces-
sary preliminary." Parke, B., at p. 171, in Bonaker v. Evans,
16 Q. B. 162.
A magistrate has discretion to refuse the issue of a summons
after a prima facie case is made out, where, if the offence were
proved, he would dismiss the summons at the hearing. R. v. Bros,
85 L. T. 581 ; R. v. Kennedy, 86 L. T. 753.
Upon a sufficient information properly laid and where there
is no reasonable doubt of their jurisdiction, the magistrates are
bound to hear and determine whether they should not issue a sum-
mons or a warrant, and proceed to a hearing, and if they refuse
to do so, they will be compelled by rule or mandamus. R. v. Benn,
6 T. E. 198.
If the information be for a penalty or the non-payment of
money, the justice should in general issue a summons in the first
instance before he grants a warrant, unless it is probable that the
party will abscond as soon as he hears of the information, or the
142 ISSUE OP SUMMONS BY JUSTICES.
object of the prosecution will be otherwise defeated. R. v. J. J.
Stafford, 3 A. & E. 425.
The summons should be directed to the party against whom
the charge is laid, and should be under the hand and seal of the
justice himself who issued it.
The intention of the summons being to afford the person
accused an opportunity' of making his defence, it should contain
the substance of the charge and fix an hour, day and place for his
appearance, allowing a sufficient time for the attendance of him-
self and his witnesses. See Re Crouse (No. 2), 21 C. C. C, per
Graham, E.J., at p. 246.
A summons to appear immediately upon the receipt thereof
has been thought insufficient in one case. R. v, MalUnson, 2 Burr.
681.
In another, an objection made to the summons that it was to
appear on the same day was only removed by the fact of the de-
fendant having actually appeared, and so waived any irregularity
in the notice. R. v. Johnson, 1 Str. 261.
It is equally necessary that it should be to appear at a place
certain, otherwise the party commits no default by not appear-
ing, and the magistrate cannot proceed in the defendant's absence
upon a summons defective in these particulars without making
himself liable to an action. R. v. Allingion, 1 Stra. 678.
The summons should require the party to appear before the
same justice or justices who received the information and issued
the summons, or " before such other justice or justices of the peace
for the same county as shall then be there, to answer to the said
charge and to be further dealt with according to law." See sec.
658 of the Code and form 5.
If a summons reciting an information as laid too late is served
upon a party, he is not bound to appear upon it, and the justice
has no jurisdiction to proceed upon it. R. v. Le Blanc, 21 C. C.
C. 221.
Eeceivixg Information and Complaint.
654. Any one who. upon reasonable or probable grounds, believes that
any person has committed an indictable offence under this Act may make
a complaint or lay an information in writing and under oath before any
magistrate or justice having jurisdiction to issue a warrant or summons
against such accused person in respect of such offence.
2. Such complaint or information may be in form 3, or to the like
effect.
EECEIVING AN INFORMATION OR COMPLAINT. 143
655. (As enacted in 1913, c. 13, s. 24). Upon receiving any such
complaint or information the justice shall hear and consider the allega-
tions of the complainant and, if the justice considers it desirable or
necessary, the evidence of any witness or witnesses ; and if the justice is
of opinion that a case for so doing is made out, he shall issue a summons,
or warrant, as the case may be, in manner hereinafter provided.
2. Such justice shall not refuse to issue such summons or warrant
only because the alleged offence is one for which an offender may be
arrested without warrant.
3. The justice shall, in connection with such hearing, have the same
power of procuring the attendance of witnesses and of compelling them to
testify as under Part XIV.
4. The evidence of witnesses, if any, at such hearing shall be given
upon oath, and the evidence of each witness shall be taken down in writing
in the form of a deposition and, subject to the provisions of section 683,
which, so far as applicable, sh^U apply to such hearing, shall be read over
to and signed by the witness and signed by the justice."
Sub-section 1 of section 655, as now worded, does away with
all doubt as to whether it was not necessary, under the enactment
as amenaed m 1909, :^or the magistrate to take the sworn state-
ment of the witness or witnesses, in addition to that of the in-
formant, before he could lawfully issue a warrant. See Ex parte
KrcHambouli, lb C. C. U. 43H ; il. v. Johnston. 17 C. C. (J. 369;
H^ Y. Merger, IH 0'. (J. C. 363, and i?. v. Mitchell, 19 C. C. C."TT8:
The justice is not bound to have witnesses brought before him.
Where there is an absolute positive statement by the informer at
the time of the laying of the information, on oath, before the
magistrate issuing the warrant, of the sale or keeping for sale of
the liquor, that is sufficient. Per Hannington, J., at p. 276, in
Ex parte Madden, (1908) 13 C. C. C. 273.
A sufficient information by a competent persion relating^ to a
matter within the magistrate's cognizance gives him jurisdiction
irrespective of the truth ot the lacts contained in it. His
auttiority to ac^ does not depend upon tne veracity ot tJie siate-
ment, or upon the evidence being sufficient to establish the corpus
delecii Drougnt under investigation, and he will be protected al-
though the information may disclose no legal evidence, or purport
to be founded upon inadmissible evidence, or upon mixed allega-
tions of law and fact. Cave v. Mountmn, 1 M. & G. 257, 264.
As, on the one hand, the information is not invalidated by
reason of the statements being false, so, on the other, it cannot
be rendered valid by the testimony offered in support of it, for
the office of the evidence is to prove, not to supply, a legal charge.
R. V, Wheatman, 1 Doug. 345; Wiles v. Cooper, 3 A. & E. 524, at
p. 531., Paley, 8th ed., p. 76.
The magistrate is not bound to issue process under sec. 655.
It is a matter entirely in his discretion and he is not bound to
144 PRE-EEQUISITES TO ISSUE OF WARRANTS.
state his reason for refusing; he has simply to express his opinion,
after considering the complaint.
A warrant should never issue, except when the charge is of a
serious nature, when a summons will be equally effective. O'Brien
V. Brdbner, 78 L. T. 409.
It is no objection to a conviction that the complainant was not
sworn till after the information to obtain a warrant was filled up
and written out by the magistrate, nor does it make any difference
that the information was laid by the constable, who afterwards
arrested the defendant. Ex p. Balser, 27 N. B. R. 40.
Where a magistrate has refused a summons on the ground that
the information does not disclose an indictable offence, the High
Court of Justice has no jurisdiction to review his decision either
as to law or as to fact, and, therefore, in such a case a rule under
11 & 12 Vic, ch. 44, sec. 5, calling upon the magistrate to shew
cause why he should not hear and determine the application for
a summons will not be granted. Ex parte Lewis, 21 Q. B. D. 191.
Where the complaint is laid upon information and belief and
the causes of suspicion are not disclosed therein, the justice should
examine the complainant and bis wiinesses, ex parte under oath,
Touching the grounds of suspicion; and the justice should grant
a warrant ot arrest only m case he liimself entertains the like
suspicion as a result ot^ such investigation. Ex parte Coffon,
(1905) 11 C. C. 0. 48, and see Ex parte Boyce, 24 N. B. E. 347;
B. V. McDonald, 24 N. S. R. 44.
Summons.
658. Every summons issued by a justice under this Act shall be
directed to the accused, and shall require him to appear at a time and
place to be therein mentioned.
2. Such summons may be in form 5, or to the like efifect.
3. No summons shall be signed in blank.
4. Every such summons shall be served by a constable or other peace
officer upon the person to whom it is directed, either by delivering it to
him personally or, if such person cannot conveniently be met with, by
leaving it for him at his last or most usual place of abode with some
inmate thereof apparently not under sixteen years of age.
5. The service of any such summons may be proved by the oral testi-
mony of the person affecting the same or by the affidavit of such person
purporting to be made before a justice.
Only ministerial acts, and not acts which are judicial, could be
legally performed in Court on a Sunday under the common law.
n. V. Winsor, 10 Cox C. C. 276, at pp. 305, 322.
ISSUE OF WARRANTS ON SUNDAY, SERVICE OF SUMMONS. 145
By sub-sec. 3 of sec. 661 poet, a warrant authorized by this
Act may be issued and executed on a Sunday, or statutory holi-
day.
There is no authorization for the issue of a summons on a
Sunday, or statutory holiday.
Under 29 Car. 2, ch. 7, sec. 6, a person against whom a war-
rant had been issued for an indictable offence might be arrested
on a Sunday, or statutory holiday. See Rawlins v. Ellis, 16 M.
& W. 173.
If a party has wrongfully escaped he may be retaken on a
Sunday without a warrant. Atkinson v. Jameson, 5 T. E. 25.
But bail cannot take the defendant on a Sunday in order to
surrender him. Brookes v. Warren, 2 Bla. Kep. 1273.
A warrant of arrest to answer a charge for an offence punish-
able on summary conviction may now be issued and executed on
Sunday. The magistrate on Sunday also accepted bail for the de-
fendant's appearance on another day, and the defendant appeared
accordingly. Held, the magistrate had jurisdiction to proceed
with the case whether taking bail was invalid or not. Re McGil-
Uvray, (1907) 13 C. C. C. 113. And see Ex paHe Garland, 8 C.
C. C. 385; and Ex parte Cormier, (1907) 12 C. C. C. 339, and
U. V. Cavelier, (1896) 1 C. C. C. 134.
No summons shall be signed in blank. This means that the
summ'Ons must be properly filled up and be complete in every re-
spect before it is signed by the justice.
Service of the Summons.
The service of the summons must, if possible, be personal; if
the constable cannot serve, or find the person to whom the sum-
mons is directed, he can then effect service by leaving it for him
at his last, or most usual place of abode with some inmate thereof
apparently not under sixteen years of age.
Where a summons was served upon a wife who carried on
business for her husband in his absence, the service was held good
service upon the husband although served upon his wife at his
most usual place of abode. R. v. McAuley, 14 0. E. 643.
A summons may be served outside as well as within the terri-
torial limits of the justice by whom it is issued : Ex parte O'Regan,
(1909) 16 C. C. C. 110.
c.c.p. — 10
146 SERVICE OF THE SUMMONS.
When the defendant was in the United States from before the
date of the information until after the hearing, the service on the
wife was held insufficient. Ex p. Fleming, 14 C. L. T. Occ. N.
106.
"When the husband was out of the province and did not re-
turn till after the hearing and service was made on his wife at
his usual place of abode during such absence, held not good ser-
vice. Conviction quashed. Ex p. Donovan, 32 N". B. E. 374,
(1894) 3 C. C. C. 286, and see Ex parte Simpson, 37 C. L. J.
510.
The words " last or most usual place of abode " mean present*
place of abode if the party has any, and the last which he had if
he had ceased to have any. Ex p. Jones, 19 L. J. M. C. 151, 1 L.
M. & P. 357. R. V. Higham, 7 E. & B. 557; R. v. Farmer, [1892]
1 Q. B. 637.
Place of business is in general a place of abode within statutes
providing for service of notice. Mason v. Bihhy, 33 L. J, M. C.
105 ; Flower v. Allen, 2 H. & C. 688.
If the service be otherwise than personal the nature of the
summons must be explained to the person with whom it is left.
R. V. Smith, L. E. 10 Q. B. 604, per Quain, J.
Leaving a copy at the house by delivering the same to a per-
son on the premises apparently residing there, as a servant, will be
sufficient. Ibid. Such person must apparently be not under six-
teen years of age.
"Where a copy of a summons was left with an adult person at
the defendant's residence, and there was no proof before the magis-
trate that this adult person was an inmate of the defendant's last
or usual place of abode, or that any effort had been made to serve
the defendant personally with a copy of the summons, the Ctourt
held that this service was insufficient and refused to admit evidence
to supplement the evidence given before the magistrate as to the
service. Conviction quashed. Re Barron, (1897) 4 C. C. C. 465.
WTiere substitutional service is relied upon there must be proof
that the defendant could not " be conveniently met with " and
that the person served was an inmate of the defendant's last, or
most usual place of abode, and that such person was apparently
of the age of sixteen, or upwards. Service on a hotel clerk at the
hotel of which the defendant was the proprietor, and in which he
usually resided, was held insufficient without proof that the hotel
clerk made the hotel his place of residence. Ex parte Wallace, 19
C. L. T. Occ. K 406.
PROOF OF SEEVICE OF THE SUMMONS. 147
In a similar case the service had been made on a brother of
the defendant at the defendant's hotel upon failure to find the de-
fendant himself, and proof was made that the brother served
" stayed at the hotel most of the time." Held, insufficient to shew
that he was an " inmate " of the hotel, and the conviction made
in defendant's absence was set aside. R. v. Franey, 16 C. C. C.
441.
Service on a person proved to be sixteen and over and to be
employed at the defendant's residence as a domestic servant, held
sufficient. R. v. Chandler, 14 East. 267.
When it is not shewn under oath by affidavit, or oral testimony,
that the defendant could not be conveniently met with so as to
effect personal service, the magistrate has no jurisdiction to pro-
ceed upon substitutional service. R. v. Carrigan, 17 0. L. T. Occ.
N. 224.
It is for the justices to decide the question of sufficiency of ser-
vice, and the Court will not interfere with their decision unless it
clearly appears that there was, in fact, no service, or that the
defendant was not allowed the interval fixed by the particular
statute between the service and the time limited for appearance,
or that the justices have mistaken the law as to the kind of service
required, and have therefore declined to entertain the matter. In
re Williams, 21 L. J. M. C, 46. See Ex parte Eojmood, 15 Q. B.
121; Robinson v. Lenaghan, 2 Exch, 333; R. v. Evans, 19 L. J.
M. C. 151; Mitchell v. Foster, 12 A. & E. 472; R. v. Goodrich, 19
L. J. Q. B. 413 ; Mason v. Bibhy, 33 L. J. M. 0. 105.
In Re Williams, 21 L. J. M. C. 46, Eele, J'., said, " as a general
rule service at nine o'clock in the morning of one day to appear at
eleven in the morning of the next day was a reasonable service
although the defendant was not at home when the summons was
left, and did not return till eleven at night."
The summons should be served a reasonable time before the
day appointed in it for the defendant's appearance. Two days, or
more, would generally be deemed reasonable.
As to what is a reasonable time, see R. v. Dibhlee, 32 N. B. R.
242, and Ex parte Hogan, 32 N. B. R. 247, also R. v. Smith, L.
R. 10 Q. B. 604.
An affidavit of service of a copy in the usual form shewing that
a copy of the summons was delivered and left with the defendant's
wife at his place of residence on a certain day, will be sufficient.
R. V. McAulay, 14 0. R. 643, and see Ex parte QuirJe, 33 C. L. J.
405.
148 PROCEEDING IN ABSENCE OF DEFENDANT.
The affidavit of service of a summons may be taken before any
justice of the peace. A commissioner for taking affidavits has no
power to take the affidavit of service of a summons. R. v. Oolding,
15 N. B. E. 385.
The usual mode, of proving service of a summons is for the
constable who served the copy to make oath to that effect before
the justice who is presiding in the Court on the day the defendant
is summoned to appear, but such proof can be made by affidavit
sworn before any justice of the peace residing within the limits.
If the constable who serves the summons is the prosecutor in
the case, the magistrate will have no jurisdiction unless the de-
fendant appears: Re Kennedy, 17 C. 0. C. 342.
In R. V. Smith, L. R. 10 Q. B. 604, Cockburn, C.J., said:
" To convict an accused person unheard is a dangerous exercise of
power, there being an alternative mode of procedure by issuing a
warrant to apprehend him. Justices ought to be very cautious
how they proceed in the absence of a defendant, unless they have
strong grounds for believing that the summons has reached him
and that he is wilfully disobeying it." In this case the defendant
was a fisherman and went to sea in pursuit of his calling on the
9th March, and on the same day a summons for assault was taken
out against him, requiring him to appear to answer the charge
upon the 12th. On that day, it having been found that a summons
was served on the defendant on the 10th, by leaving it with his
mother at his usual place of abode, the justices convicted him in his
absence. Before the 9th April he returned from sea and was
arrested under the conviction. The Court held that there was no
evidence before the justices that a reasonable time had elapsed
between the time of the service of the summons and the day for
the hearing the summons, and the justices had therefore no juris-
diction to convict.
If a summons requiring the defendant to appear on the same
day is served, an adjournment should be granted to the defendant
appearing, if any ground for it is shewn. R. v. Lang ford, 15 0.
E. 52.
When a statute fixed no period for delay between the service
and the return of the summons, it was held that a service on the
defendant at his domicile twenty miles from the place where he
was by the writ summoned to appear on the following day at
10 o'clock in the forenoon, the service being effected about 3
o'clock in the afternoon of the day preceding, was not reasonable
ISSUE AND SERVICE OP SUMMONS. 149
and the plaintiff could not legally proceed. Ex p. Church, 14 L.
0. E. 318.
Where the constable found the door of the defendant's house
fastened and he spoke to the defendant through a closed window
explaining the nature of the process, and then placed a copy of
the summons under the door informing the defendant of this fact,
after this he returned to the window and shewed the original
summons to the defendant who said' " that will do." Held, the ser-
vice was sufficient. Ex p. Campbell, 26 N. B. R. 590.
In effecting service of a summons under this section of the
Code the constable is performing a duty of his office and any
assault upon him will render the offender liable for assaulting
a constable in the execution of his duty. See section 296 of the
Code.
A summons may be issued upon an information before a jusr
tice of the peace for an offence punishable on summary conviction,
although the information has not been sworn; but, before a war-
rant can issue, there must be an information in writing and
under oath. R. v. McDonald, (1S96) 3 0. C. 0. 287.
A summons was issued on the 20th June, 1905, for the de-
fendant's appearance on 2l6t June at 10 o'clock in the fore-
noon, at the Town Court Eoom, Truro. The defendant was per-
sonally served on the 20th in the streets of Truro, where he car-
ried on business, with a copy of the summons. The defendant
complained that he was not served a reasonable time before the
time appointed for his appearance. He did not appear at the
time appointed and the magistrate proceeded in his absence, and
made a conviction against the defendant. On a case stated by the
magistrate the question of sufficiency of notice was alone discus-
sed. Held, the service was reasonable. R. v. Craig, (1905) 10
0. 0. C. 249.
What the defendant in the above case should have done was
to have appeared personally, or by counsel, and asked for an ad-
journment upon the ground that he had not had time to prepare
his defence.
When the day of the week and the day of the month men-
tioned in the return day in a summons issued by a magistrate
do not conform, the summons is not invalid as for an impossible
day, but the day of the month governs. Ex parte TompJcins,
(1906) 12 C. 0. C. 552.
160 SUMMONS FOR A CORPORATION.
It was held bj a Divisional Court, Falconbridge and Street,
JJ., that the procedure of the CTiminal Code as to summary
convictions applied as well to corporations as to natural persons.
Notice of a summons by justices under the summary conviction
clauses of the Code may be given in a manner similar to a notice
of indictment under sec. 918 of the Code. R. v. Toronto RoAlway
Co., (1898) 2 C. C. C. 471.
On the other hand the Supreme Court of New Brunswick has
held that clauses of the Criminal Code relating to summary con-
victions do not apply to corporations. Ex parte Woodstock Elec-
tric Light Co., (1898) 4 C. C. C. 107.
The matter is now set at rest by the amendments to the Code
in 1909 by inserting immediately after sec. 720, section 720a,
which provides that when th^ defendant is a corporation the sum-
mons may be served upon the mayor, or chief officer of such cor-
poration, or upon the clerk or secretary or the like officer thereof,
and may be in the same form as if the defendant were a natural
person. (2) The corporation in such case shall appear by attor-
ney, and if it does not appear the justice shall proceed as in other
cases.
It is to be noted that these provisions as to corporations apply
only to offences punishable under the summary conviction sec-
tions of the Code, Part XV.
Until recently it was thought that a magistrate has no sum-
mary jurisdiction to adjudicate upon, or to hold a preliminary
iiiquirv respecting, an indictable offence against a corporation, and
that the proper proceeding in such cases is by indictment under
secTgie of the Code: R. y. T. Eaton Co. Ltd., (1898) 2 C. C. C
252^; Re Uhapman and uiiy of London, 19 0. E. 33. and R. v'.
City of London, 32 0. E. 326, in all which cases prohibition was
granted agamst Police Court proceedings by way of preliminary in-
qmry. Eut in Re Hchojield and City of Toronto, 22 C. "070^5.
Meredith, O.J., refused leave to prefer an indictment against the
city for a nuisance on the ground that a preliminary inquiry be-
fore a magistrate should first take place.
As to indicting corporations, see Union Colliery Co. v, Regina,
(1900) 4 C. C. C. 400, and 31 S. C. E. 81, and R. v. Great West
Laundry Co., (1900) 3 C. C. C. 514.
To force on the trial of a case without giving the defendant
time to prepare his defence is contrary to natural justice and the
conviction will be set aside. R. v. Eli, 10 0. E. 727, and see R.
V. McKenzie, 23 N. S. E. 6, at p. 23.
waiver of irregularities in summons. 151
Waivbr op Irregularitt.
If the defendant actually appears and pleads there is no
longer any question upon the suflScieney or regularity of the >^
summons, or its service. Taylor v. Clemson, 11 CI. & Fin, 610,
642 ; R. V. Preston, 12 Q. B. 825 ; R. v. Ward, 3 Cox 279 ; R. y.
Holyohe, 21 C. C. C. 422.
Where what is assumed to be done is a nullity there is noth-
ing that can be waived', but where there is an irregularity it can
be waived. Boyle v. SacJcer, 39 Ch. Div. 249 ; Fry v. Moore, 23 Q.
B. D. 395; Whiffen v. JJ. Mailing, [1892] 1 Q. B. 362.
A summons is not avoided by reason of the justice who signed
the same dying or ceasing to hold oflBce. Criminal proceedings
do not lapse by the death of the informant. R. v. Truelove, 5 Q.
B. D. 336.
Although the defendant has failed to appear upon the sum-
mons in a summary conviction offence, the information may be
amended to correct the date of the offence, but not to charge
a different offence. Ex parte Tompkins, ubi supra; Ex parte
Voherty, 1 C. C. C. 84, distinguished.
" A flood' of authorities might be cited in support of the pro- |
position that no process is at all necessary when, the accused be- /
ing bodily before the justices, the charge is made in his presence i^
and he appears and answers it." Hawkins, J., in R. v. Hughes, 4 /
Q. B. D. 614, at p. 626. -•
" But, whether the summons was good or bad, I imagine it is
now law sufficaently well established that a person who appears
in answer to a summons and takes his trial and chances of ac-
quittal, is considered as having waived any objection to the sum-
mons. . . . The defendant having appeared to the summons,
he was exactly in the same position as if he had been most pro-
perly, legally and technically summoned without the slightest
irregularity." Morris, O.J., in R. v. JJ. of Carrick-on-Suir,
16 Cox 571.
Where the justices have jurisdiction to hear the information
and no objection is taken at the time to any informality in the l^
form of the information, the justices have jurisdiction to convict.
n. V. Bradley, 63 L. J. M. C. 183.
The non-attendance of the party does not authorize a judg-
ment without a due examination of the facts upon oath with the
same formality as if he were present and made defence.
152 WAIVER OF IRREGULARITIES IN SUMMONS.
It appears to be doubtful whether it is competent to justices
to convict upon a plea of guilty by a solicitor in the absence of
the defendant. R. v. Aves, 24 L. T. R. 64.
But in R. V. McDonald, 21 C. O. C. 229, it was held that coun-
sel duly authorized may appear and enter a plea of guilty for an
absent defendant in a summary conviction matter.
Where a special Act provided that in all prosecutions under
it particulars of the offence of which the seller is accused shall be
stated in the summons, the omission of such particulars from
the summons does not deprive the justices of jurisdiction, but
merely entitles the defendant to an adjournment of the hearing
in the event of the justices being satisfied that he is prejudiced by
Buch omission, Neal v. Devenish, [1894] 1 Q. B. 544.
If the defendant appears, any irregularity in the summons, or
even the want of a summons altogether, becomes immaterial " un-
less the statute creating the offence imposes the necessity of some
such step." R. V. Shaw, 34 L. J. M- C. 169 ; R. v. Stone, 1 East
649.
Where a defendant, having appeared in answer to a summons
before justices, during the hearing of the case forcibly leaves the
Court, the justices may adjourn, and at the adjourned sitting,
if the defendant does not appear, may in his absence convict him
of the offence with the commission of which he was charged.
R. V. J J. Carrick-on-Suir, 16 Cox 571,
But a defendant who has been summoned from without the
jurisdiction of the justices, for an offence that has taken place
also out of thedr jurisdiction, does not by his appearance on the
summons cure the defect of want of jurisdiction. Johnson v.
Colam, L. R. 10 Q. B. 544, 44 L. J. M. C. 185.
An objection raised on a motion to quash the conviction that
\j the information was taken before only one justice of the peace
was overruled, it being held to have been waived by the defend-
ant's appearance. R. v. Clarke, 20 0. R. 642.
The defendant being present in Court, on a charge of drunken-
ness which was disposed of, was, without any summons having
been issued, charged with another offence, namely, selling liquor
without a license. The information was read over to him and he
pleaded not guilty and, evidence for the prosecution having been
given, he asked for and obtained an enlargement till the next
day, when, on his not appearing, he was convicted in his absence
WAIVER OF IRREGULARITIES IN SUMMONS. 153
and fined $50 and costs. Held, that under these circumstances
the issuing of a summons was waived. R. v. Olarhe, 19 0. E. 601.
When the information was not ewom at the place and time
stated, the defendant's appearance and objection only on other
grounds was held to waive the defect. Ex parte Bonier, (1896)
2, C. C. C. 121 ; and see section 668 of the Code.
An irregular adjournment of summary proceedings before
a magistrate, or an adjournment beyond the time directed by the
statute, is waived by the accused afterwards appearing for trial
without taking objection thereto and adducing evidence. B. v.
Miller, (1909) 15 C. 0. C. 87, and see E. v. Hazen, 20 A. E. 633,
and n. v. Eefernan, 13 0. E. 616.
Unless dispensed with by statute or waived, there must be
some previous summons or notice to the party charged of the
hearing of the charge against him. R. V. Dyer, 6 Mod. 41 ; R. v.
University of Cambridge, 8 Mod. at p. 154; Harper v. Carr, 7 T.
E. 270; R. v. Benn, 6 T. E. 198.
This may be waived by appearing, pleading and defending.
But asking an adjournment for the purpose of procuring evi-
dence is not necessarily a waiver. R. V. Vrooman, (1886) 3 M.
B. 509.
Prohibition will be granted against a justice to prevent his
proceeding under a second summons upon the same information
after the quashing on certiorari of a conviction for want of service
of the first summons, or of appearance thereunder, the information
having been sent with the oonviction to the Cburt above and ir-
regularly returned to the magistrate afterwards. R. v. Zickrick,
(1897) 5 C. C. C. 380.
It is important that the constable serving the summons should
prove the service either orally or by affidavit, for, although the
accused may have been actually served, yet if he does not ap-
pear the magistrate would have no right either to issue a warrant,
or to proceed otherwise in the absence of the defendant without
proof that he was duly served. R. v. McEachern, 13 N. S. E.
321; see sec. 660 (5) of the Code.
Proof by a policeman that he served a copy of the summons on
the defendant personally, and that the defendant resided in the
town in which prosecution was begun, and process issued, is suffi-
cient to shew a service within the magistrate's jurisdiction. Moore
V. SharJcey, 26 N. B. E. 7.
A magistrate has no jurisdiction to proceed in the absence
of the accused in a summary proceeding without evidence that
154 NON-APPEARANCE OF ACCUSED.
the summons was served a reasonable time before the hearing.
Be O'Brien, (1905) 10 C. O. C. 142. See R. v Craig, (1905)
10 C. 0. C. 249.
Non-appearance of the Accused.
In case the ser\ice of the summons has been proved and the
accused does not appear, or when it appears the summons can-
not be served, a warrant in form 7 may issue. Section 660 (5)
of the Code.
The person charged with committing an indictable offence
must be before the justice either voluntarily, by summons, or
after being apprehended by warrant, before the justice can pro-
ceed to inquire into the matters charged against such person.
See sec. 668 of the Code.
The justice cannot proceed with a preliminary inquiry unless
the accused person is present at the hearing. By sec. 682 of the
Code the evidence of the witnesses for the prosecution "shall be
given upon oath, and in the presence of the accused, and the ac-
cused, his counsel or solicitor, shall be entitled to cross-examine
them."
" There never has been a time since the abolition of the Star
Chamber system of trial, when a person accused of an indictable
offence in an English Court has not been entitled to hear the evi-
dence brought against him, and to cross-examine the witnesses,
and no evasion, or variation, of that rule has ever been sanctioned
when brought before the attention of the Superior Court." Per
Hall, J., in R. v. Lepvne, (1900) 4 C. C. C. 145, and see R. v.
Traynor, (1901) 4 C. C. C. 410, and R. v. Watts, 33 L. J. M. C.
63.
In respect to offences punishable on summary conviction the
procedure is different. In summary convictions, if the accused
does not appear at the time and place appointed by the summons,
and it appears to the satisfaction of the justice that the summons
was duly served a reasonable time before the time appointed for
appearance, such justice may proceed ex parte to hear and
determine the case in the absence of the defendant as fully and
effectually to all intents and purposes as if the defendant had
personally appeared. Or the justice, if he thinks fit, may issue
his warrant as provided in sees. 659 and 660, and adjourn the
hearing till the defendant is apprehended. See sec. 718 of the
Code.
NON-APPEARANCE OF ACCUSED. 155
The authority of the magistrate to determine the case in the
absence of the defendant, in default of his appearance, must be
restricted to the particular charge in the original information.
Ex parte Doherty, (1894) 1 C. 0. 0. g4.
The hearing of an offence punishable on summary conviction
may be adjourned from time to time although the accused be not
present, provided the adjournments are made in the presence and
hearing of his solicitor or agent. Proctor v. Parker, (1899) 3
C. C. C. 374.
A magistrate has no jurisdiction to issue a warrant of arrest
in the first instance under the summary conviction clauses of the
Code (Part XV.) upon an information pledging the informant's
suspicion and belief, but not stating the grounds therefor, with-
out first examining the informant or his witnesses as to the
grounds of suspicion. Ex parte Grundy, (1906) 12 C. C. 0. 65.
Where this objection was taken on the hearing but overruled,
the conviction was quashed. Ibid.
Where the summons issued under the summary conviction pro-
cedure is for an offence different from that set out in the informa-
tion, the magistrate acquires no jurisdiction over the accused on
his failure to attend on the return of the summons, and a con-
viction made on default of appearance will be set aside. Sections
669 and 724 of the Code do not apply when jurisdiction has not
been properly acquired over the accused. Ex parte Melanson,
(1908) 13 C. C. C. 251.
Warrant of Arrest.
659. The warrant issued by a justice for the apprehension of the
person against whom an information or complaint has been laid as pro-
vided in section six hundred and fifty-four jnay be in form 6, or to the
like effect.
2. No such warrant shall be signed in blank.
660. Every warrant shall be under the hand and seal of the justice
issuing the same, and may be directed, either to any constable by name,
or to such constable and all other constables within the territorial juris-
diction of the justice issuing it, or generally to all constables within such
jurisdiction.
2. The warrant shall state shortly the offence for which it is issued,
and shall name or otherwise describe the offender, and it shall order the
officer or officers to whom it is directed to apprehend the offender and bring
him before the justice, or justices issuing the warrant, or before some other
justice or justices to answer to the charge contained in the information
or complaint, and to be further dealt with according to law.
3. It shall not be necessary to make such warrant returnable at any
particular time, but the same shall remain in force until it is executed.
156 WARRANTS OF ARREST.
4. The fact that a summons has been issued shall not prevent any
justice from issuing a warrant at any time before or after the time men-
tioned in the summons for the appearance of the accused.
5. In case the service of the summons has been proved and the accused
does not appear, or when it appears that the summons cannot be served,
a warrant in form 7 may issue.
We will consider sections 659 and 660 together. We have
seen that, by the provisions of sections 654 and 655 of the Code,
a prerequisite to a justice issuing a warrant is that he shall have
received and taken an information or complaint in writing and
under oath, and the justice should hear and consider the allega-
tions of the complainant, and the evidence of his witnesses if he
desires to do so, and, if he is of opinion that a case for so doing
is made out, he shall then issue a summons or warrant as the case
may be. The ■question whether a summons or a warrant should
issue in the first instance, is one entirely in the discretion of the
justice. He will be guided altogether by circumstances, taking
into consideration the nature of the offence charged, the facts al-
leged and bearing in mind that the object to be attained is to
secure the attendance of the accused.
It is to be noted, (a) that the warrant must not be signed in
blank; (&) it must be under the hand and seal of the justice
issuing the same; (c) it may be directed either to any constable
by name, or to such constable and all other constables within the
territorial jurisdiction of the justice issuing it, or generally to
all constables within such jurisdicion; (d) the warrant shall
state shortly the offence for which it js issued — in this respect it
should state the offence as set out in the information; (e) it
shall name or otherwise describe the offender, this is important;
(/) it shall order the officer, or officers, to whom it is directed,
to apprehend the offender and bring him before the justice or
justices issuing the warrant, or before some other justice or jus-
tices to answer the charge contained in the information or com-
plaint, and to be further dealt with according to law.
As the person apprehended is to answer the charge contained
in the information, or complaint, this makes it almost imperative
that the offence stated shortly in the warrant should follow the
description of the offence as set out in the information; (g) it
shall not be necessary to make the warrant returnable at any par-
ticular time; it will remain in force until executed.
The fact of a summons having issued will not prevent a war-
rant being issued at any time either before, or after, the time
mentioned in the summons for the appearance of the accused.
Section 660 (4) of the Code.
ISSUE OF WARRANT AFTER SUMMONS. 157
In case the service of the summons has been proved and the
accused does not appear, or if it appears that the summons can-
not be served, a vv^arrant in form 7 may then issue. Ibid. (5)
It is safe, but perhaps not necessary, in the body of the war-
rant, to shew the place where it is made, yet it seems necessary
to set forth the county in the margin at least if it be not set forth
in the body. 2 Hawkins, ch. 13, sec. 23.
Upon looking at forms 6 and 7 it will be noticed that the
venue is stated in the margin.
The warrant ought regularly to mention the name of the party
to be arrested, and must not be left in general, or with blanks
to be filled up by the party afterwards. 2 Hde llJt; Dalt. ch.
169.
If the name of the party to be arrested be unknown the war-
rant may be issued against him by the best description the nature
of the case will allow, as " the body of a man whose name is un-
knfown, but whose person is well known and who is employed
as. the driver of cattle and wears a badge No. 573." 1 Hale 577.
As to mistake in name see R. v. Matheson, 20 C. O. C. 496.
A warrant to apprehend Hood (omitting the christian
name) of B. in the parish of F., by " whatsoever name he may be
called or known, the son of Samuel Hood, to answer, &c.," was
held defective as omitting the christian name, assigning no reagon
for the omission nor giving any distinguishing particulars of
the individual, and the conviction of the prisoner because he had
resisted was held wrong. B. v. Hood, 1 M. C 0. 281.
If there be a mistake in the name of the supposed offender,
or if the name of the officer be inserted without authority, and
after the issuing of the warrant, or if the officer exceeds the limits
of his authority and be killed, this will amount to no more than
manslaughter in the person whose liberty is thus invaded. Cole
V. Hindson, 6 T. E. 234, per Laurence, J., at p. 236, quoting Fos-
ter, 312.
But if the warrant be filled up by the magistrate before he
issues it, though after he signed it, the proceeding is regular and
killing the officer endeavouring to arrest the party is murder.
E. V. Inhabitants of Winwick, 8 T. E. 455. It might perhaps be
questioned whether this would be the present law in view of the
positive enactment in sub-sec. 2 of sec. 659 of the Code, which pro-
vides that no warrant shall be signed in blank. The words, how-
ever, are, " No such warrant ;" the warrant referred to is " the
158 REQUISITES AS TO WAKRANTS.
warrant issued by a justice," as provided in the first sub-section.
So a fair construction would be that no warrant shall be issued
that is signed in blank, to be filled up after issue; but that the
justice might sign the warrant before he fills it up, provided he
does not issue it.
The safer plan however to pursue is to fill up the warrant be-
fore signing it.
A general warrant upon a complaint of robbery to apprehend
all persons suspected and to bring them before a justice hath been
ruled void, and false imprisonment lies against him that issues
such warrant. 1 Hale 580; 2 Hah 112. So a general warrant
to apprehend the authors, printers and publishers of a libel with-
out naming them is illegal. Money v. Leach, 1 Wm. Bl. 555,
19 Howell's State Trials, 1002.
The warrant should state the specific offence with which the
party is charged. Caudle v. Seymour, 1 Q. B. 889.
The following warrant was in the above case held to be bad:
" I do hereby in Her Majesty's name command you and every
of you, upon sight hereof, to apprehend and bring before me, one
of Her Majesty's justices of the peace, the body of (the plaintiff)
of whom you shall have notice, to answer to all such matters and
things as on Her Majesty's behalf shall be objected against him
on oath by Mary Ann Warner of, &c., for an assault committed
upon her upon the 24th instant."
The warrant need not be returnable at a place certain. U
Black Com. 291.
It ought to set forth the year and day wherein it is made,
that, in an action brought upon arrest by virtue of it, it may ap-
pear to have been prior to such arrest and also, in case where the
statute directed the prosecution to be within such a time, that
it may appear that the prosecution is commenced within such
time limited. 2 Hawk. ch. 13, sec. 22. And it is in general better
to state the place where the warrant is made. Dalt. ch. 169.
If forms 6 and 7 of the Code are strictly followed these re-
quirements will be met with.
In case of a warrant by more than one justice, in determining
whether they shall issue it, the justices must, it seems, be acting
together, but it is not necessary that all of them should be pre-
sent when each executes it. Batty e v. Gresley, 8 East 319.
A warrant to arrest for embezzlement should shew that the
defendant was, or had been, a clerk or servant, or was, or had
IRREGULARITIES IN WARRANTS. 159
been, employed in that capacity, and that he had received property
said to have been embezzled by him, or that it has been delivered
to him, or taken into his possession for, or in the name or on
account of his master or employer. McGregor v. Scarlett, 7 P. E.
20, per Wilson, J., at p. 28 (see sec. 359 of the Oode).
A warrant issued by a justice founded on an information which
discloses no criminal offence cannot be sustained by proof that
there was in fact parol evidence on oath given which conveyed a
criminal charge. Lawrenson v. Hill, 10 Ir. C. L. E. 177.
A written and sworn information is essential before a war-
rant can be legally issued. Friel v. Ferguson, (1865) 15 U. C.
C. P. 584.
Where the warrant omitted to state the fact that the informa-
tion on which it was issued was taken on oath, whereas as a fact
it had been so taken, held at most an irregularity which would be
covered by sec. 669. Kingston v. Wallace, (18S6) 25 N. B. E. 573.
A justice who illegally issues a warrant, without having re-
ceived a sworn information in respect of the charge, is liable in
trespass for the arrest made thereunder, and he cannot justify
the commanding of the constable to make the arrest by shewing
that he the justice had a reasonable suspicion that an offence
had been committed. McGuiness v. Dafoe, (1896) 3 C. C. C. 139,
and see R. v. McDonald, (1896) 3 C. C. C. 287.
As to a peace officer making an arrest on suspicion without
warrant, see sec. 30 of the Code.
If the accused is in fact present hefore the magistrate and
the magistrate has jurisdiction over the person and offence, he may
lawfully proceed with the hearing of the charge notwithstanding
that the warrant on which the accused was arrested was executed
by a person not legally qualified for that purpose. Ex parte
Giberson, (1898) 4 C. CI C. 537; and see R. v. Hughes, 4 Q. B.
D. 614; and see R. v. McLean, (1901) 5 C. 0. C. 67, and R. v.
Weiss (No. 2), 22 C. C. C. 42.
As to jurisdiction of justice to proceed when prisoner brought
before him by arrest under an illegal warrant, see cases collected
at pages 238 and 252.
An objection that a warrant of arrest was unstamped under
provincial tariff, held objection waived as not being taken on pre-
liminary hearing, too late when made for the first time on hearing
of speedy trial. R. v. Rodrigue, (1907) 13 0. C. C. 249.
1/
160 ESSENTIALS IN WARRANTS OF ARREST,
Law stamps are not payable by the Crown in criminal pro-
ceedings before a district magistrate in Quebec. Ibid.
Where there is an absolute and positive statement by the in-
formant in the sworn information of the commission of the offence
by the accused, a warrant of arrest may be issued without an ex-
amination of the informant or of his witnesses. Ex parte Madden,
(1908) 13 C. C. C. 273.
Failure to serve at the time of arrest a copy of the warrant
to apprehend, even in cases when the statute directs such service
to be made, does not go to the jurisdiction of the magistrate, and
is not a ground for setting aside a conviction. Ibid. Ex parte
Coffan, 11 C. C. 0. 48, distinguished.
The above relates to warrants issued in offences under sum-
mary conviction clauses.
A justice of the peace who issues a warrant of arrest without
inquiring into the grounds which the complainant had to suspect
the accused, becomes liable towards the latter under the laws of
Quebec, when the complaint was not justified by any serious rea-
sonable or plausible ground. Murfina v. Sauve, (1901) 6 C. 0. C.
275 ; and see R. v. Lizotte, 10 C. C. C. 316.
It is not essential that a magistrate should add to his signa-
_X_ ture to a warrant the full designation of his oflBce and the name
of the district for which he was appointed, if such is recited
in the body of the warrant. B. v. Lee Ohu, (1909) 14 C. C. C.
322.
A warrant of arrest for perjury is sufficient under sec. 1152
of the Code, if it charges that the accused committed perjury by
swearing that he did not do a particular act specified, without
alleging therein that the statement was sworn with intent to mis-
lead the Court. Ibid.
Prisoner was arrested in Halifax by the police department of
that city on request by telegram from the chief of detectives, Mont-
real. The telegram stated that a warrant had been sworn out in
Montreal for Lee Chu's arrest for perjury. On habeas corpus
proceedings the Chief of Halifax Police returned a warrant issued
in Montreal by Bazin, P.M., of that city, the warrant being en-
dorsed by Geo. H. Fielding, stipendiary magistrate for Halifax.
" I am not I think called upon to say whether the arrest was law-
ful in the first instance. I think I cannot discharge the prisoner
when a warrant duly executed is returned to me as the cause of
his detention with the endorsement by the stipendiary magistrate
\
EXECUTION OF WAERANTS OF AREEST. 16 J
of the city authorizing its execution." Russell^ J., at p. 327.
Jhid. For arrest on telegram, see R. v. Cloutier, (1898) 2 C. C.
C. 43.
As all warrants of arrest are directed t)0 a constable or other
peace officers or constables, they alone can execute the same. A
warrant cannot be directed to any one except a constable or peace
officer, and no one else can legally execute the same by arresting
the accused. Any constable or peace officer to whom a warrant
is directed is bound to execute the same.
A peace officer executing a warrant of arrest is exempt froru
criminal responsibility therefor by sec. 29 of the C'ode " if he in
good faith and without culpable ignorance and negligence believes
that the warrant or process is good in law." Ignorance of the
law in such a case can be an excuse. It shall be a question of
law whether the facts of which there is evidence may or may not
constitute culpable ignorance or negligence in the belief of the
person executing the warrant that the same is good in law. See
sec. 29 of the Code, and Gaul v. Ellice, (1902) 6 C. C. C. 15.
"Where a warrant is directed to a certain person, as for in-
stance the constable of A, that is the constable of such division,
it cannot be lawfully executed by any other person. R. v. San-
ders, L. R. 1 C C. R. 75; see also Symonds v. Kurtz, 16 Cox 726,
53 J. P. 727, and Jones v. Ross, 3 tj. C. R. 328.
Execution of the Warrant.
661. Every such warrant may be executed by arresting the accused
wherever he is found in the territorial jurisdiction of the justice by whom
it is issued or, in the case of fresh pursuit, ,at any place in an adjoining
territorial division within seven miles of the border of the first-mentioned
division.
2. Every such warrant may be executed by any constable named therein
or by any one of the constables to whom it is directed, whether or not the
place in which it is to be executed is within the place for which he is a
constable.
3. Every warrant authorized by this Act may be issued and executed
on a Sunday or statutory holiday.
The officer to whom a warrant is directed and delivered ought
with all speed and secrecy to find out the party and then to
execute the warrant. Dalt. ch. 169.
When the party named in the warrant employs others to assist
him, he must be so near as to be acting in the arrest in order to
render it legal. Blatch v. Archer, Cowper 66,
c.c.p. — 11
1(?2 PBOCEEDIN'GS TO BE FOLLOWED IN MAKING ARRESTS.
An arrest in the night is good both at the suit of the Queen,
and of the subject, else the party may escape. 9 Rep. 66.
By sub-sec. 3 of sec. 661, a warrant may be both issued and
executed on a Sunday, or statutory holiday.
To constitute an arrest, the party need not be tooiched by the
officer, it being sufficient if he is commanded to give himself up
and does so. ? Bishop's O. Law, 33.
A person, it seems, may be twice apprehended under the same
warrant if the purposes of the warrant have not been effected.
Dickenson v. Brovjn, Peake's Rep. 307, and R. v. O'Hearon (No.
2), (1901) 5 C. C. e. 531; and see Ex parte Doherty, (1899)
i? C. 0. C. 94.
Bare words will not constitute an arrest without laying hold
of the party or otherwise restraining his liberty. Genner v.
Sparkles, 1 Salk. TO. See cases collected in 2 Chit. Arch. Prac.,
I4th ed., 894.
The directions of the warrant must be strictly observed, or
the party executing it will not be justified in his acts and may
be treated as a trespasser, as if the warrant be to arrest A and he
.'♦rrest B. 2 HauA:, ch. 13, sec. 31.
By sec. 40 of the Code, it is the duty of every one executing
any process or warrant to have it with him and to produce it if
required.
And, where practicable, the officer should give notice of the
process or warrant under which he acts, or of the cause of the
arrest. Ibid.
An officer gi veth sufficient notice what he is when he saith to
the partj', " I arrest you in the Queen's name," and in such case
the party at his peril ought to obey him, though he knoweth him
not to be an officer; and if he have no lawful warrant the party
grieved may have bis action for false imprisonment. Dalt, 169.
The doctrine that even a known officer is not obliged to shew
his authority when demanded was considered as dangerous be-
f^ause it may affect the party criminally in the event of resistance,
and, if homicide ensues, the legality of the warrant enters materi-
ally into the merits of the question. And Lord Kenyon observed
that he did not think a person is bound to take it for granted that
Jinother, who says he has a warrant against him without produc-
ing it, speaks the truth. Hall v. Roche, 8 T. E. 188.
A constable went to the plaintiff's house with a warrant for
his arrest, shewed bim the warrant, allowed him to take a copy
DUTIES OP CONSTABLES MAKING ARRESTS. 163
of it and then he accompanied the constable to the magistrate,
who, after examining him, dismissed the pkintiff. In an action
against the magistrate for assault and false imprisonment, a ver-
dict was given for the defendant (the magistrate). Upon shew-
ing cause against a rule for setting aside the verdict, Mansfield,
C.J., held that, as the plaintiff went voluntarily before the magis-
trate, the warrant being made no other use of than as a summons,
this was not arrest and, therefore, the verdict was right. Arrow-
smith V. Le Mesurier, 2 B. & P. N E. 211, and see Russen v.
Lucas, 1 C. & P. 153.
If the oonstable making the arrest is also the prosecutor, it
seems that the arrest would be illegal. Re McMurrer (No. 2), 18
C. 0. C. 49.
But, when a peace officer has no personal interest in a case
and lays an information solely in discharge of his official duty,
there is no objection to his executing the warrant of arrest.
Stone V. Vallee, 18 C. C. C. 222.
And if the constable come unto the party and require him to
go before the justice, that is no arrest or imprisonment. Dalt,
cli. 170.
In no case isi a constable required to part with the warrant
out of his own possession, for that is his justification. R. v.
Wyatt, 2 Ld. Eay., at p. 1196.
Where a constable tells a person given in to his charge that
he must go with him before a magistrate, and the person goes
quietly and without force being used, it is an arrest. See Chinn
V. Morris, 2 C. & P. 361 ; Perrin v. Joyce, 6 U. C. 0. S. 300, and
see PococJc v. Moore, Ry. & M. 321, and Forsyth v. Ooden, 32
C. L. J. 288, 499.
No one should be handcuffed unless, from the nature of the
offence and the supposed character of the prisoner, or for violent
resistance to arrest, or attempt to escape, or for some other suffi-
cient reason, the constable has reasonable- apprehension that the
prisoner would otherwise escape, or that there is danger that he
might do so. Wright v. Court, 4 B. & C. 596; Griffin v. Coleman,
4 H. & N. 265; Hamilton v. Massie, 18 0. E. 585.
The party arrested should not be treated with any unneces-
sary harshness beyond what is actually necessary for his safe
custody. Ibid.
164 DUTIES OF CONSTABLES IN MAKING ABRESTS.
It is well to note here the provieions of sec. 39 and sec. 66 of
the Oode as follows: —
39. Every one executing any sentence, warrant or process, or in
making any arrest, and every one lawfully assisting him, is justified, or
protected from criminal responsibility as the case may be, in using such
force as may be necessary to overcome any force used in resisting such
execution or arrest unless the sentence, process or warrant can be executed
or the arrest effected by reasonable means in a less violent manner.
While force may be used in executing a warrant, it must be
only such force as may be necessary to oYercome any force used
in resisting the arrest. Such force must not be excessive.
66. Every one authorized by law to use force is criminally responsible
for any excess, according to the nature and quality of the act which con-
stitutes the excess.
As to the case of breaking open doors in order to apprehend
offenders, it is to be observed that the law doth never allow of
such extremities, but in cases of necessity, and, therefore, no one
can justify breaking open another's doors to make an arrest, unless,
perhaps, for felony, unless he first signify to those in the house
the cause of his coming, and request them to give admittance. 2
Hawk., ch. IJ^, sec. 1; LaunocTc v. Brovm, 2 B. & Aid. 592.
No precise words are required in a case of this kind; it is
suflScient that the party had notice that the officer cometh not as
a mere trespasser, but claiming to act under a proper authority,
provided that the officer has a legal warrant (Fost. 137).
But, where a person authorized to arrest another who is shel-
tered in a house is denied quietly to enter it in order to take him,
it seems generally to be agreed that he may justify breaking open
the doors in the following instances: —
(1) Upon a capias grounded upon an indictment for any
crime whatsoever; or upon a capias from the Cliancery or King's
Bench to compel a man to find securities for the peace, or good
behaviour, or even upon a warrant from a justice of the peace for
such purpose. 2 Hawk., ch. IJf, sec. 3.
Where a party has been guilty of contempt of Court and pro-
cess has been issued against him for it, outer doors may be broken
open to execute it. Semayne's Case, 5 Eep. 92; and see Burdett
V. Abbot, 14 East., at p. 157.
(2) When one known to have committed a treason or felony,
or to have given another a dangerous wound, is pursued either
with or without a warrant by a constable, or a private person.
But where one lies under a probable suspicion only and is not
DUTIES OF CONSTABLES IN MAKING ARRESTS. 165
indicted, it seems the better opinion at this day that no one can
justify the breaking open doors in order to apprehend him, 2
HawTc., ch. lit, sec. 7; Edle 91; Jf East. 177.
But, upon a warrant for probable cause of suspicion of felony,
the person to whom such warrant is directed may break open
doors to take the person suspected, if upon demand he will not
surrender himself, as well as if there had been an express and
positive charge against him; and so (he says) hath the common
practice obtained notwithstanding the contrary opinion of Lord
Coke: for, in such case, the process is for the King and, therefore,
a non omittas is implied. 1 Hale 580, 583; 2 Hale 117 .
And, as he may break open such person's own house, so much
more may he break open the house of another to take him; for
so the sheriff may do upon a civil process; but then he must at
his peril see that the felon be there ; for, if the felon be not there,
he is a trespasser to the stranger whose house it is. 2 Hale, 177,
Semayne's Case, 5 Eep, 92.
But it seems that he that arrests as a private man, barely
upon suspicion of felony, cannot justify the breaking open of
doors to arrest the party suspected, but he doth it at his peril,
that is, if in truth he be a felon, then it is justifiable, but if he
be innocent, but upon a reasonable cause suspected, it is not
justifiable. 1 Hale 82.
But a constable in such case may justify. Another reason of
the difference is this : because, in the former case, it is but a thing
permitted to private persons to arrest for suspicion, and they are
not punishable if they omit it; and, therefore, they cannot break
open doors ; but, in case of a constable, he is punishable if he omit
it on complaint. 2 Hale 92.
And in general an officer upon any warrant from a justice,
either for the peace or good behaviour, or in any case where the
King is party, may by force break open a man's house to arrest
the offender. Dalt. ch. 169.
It is justifiable for a private person to break and enter the
house of another and imprison his person in order to prevent him
murdering his wife. Handcoch v. Baker, 2 B. & P. 260.
But a private person is not justified in arresting, or giving in
charge of a policeman without a warrant, a party who has been
engaged in an affray, unless the affray is still continuing, or there
is reasonable ground for apprehending that he intends to renew it.
Price V. Seeley, (1843) 10 CI. & Fin. 28.
166 DUTIES OF CONSTABLES IN MAKING ARRESTS.
A private person cannot of his own authority arrest another
for a breach of the peace after it is over. S Hawk. IdJ^; see see.
46 of the Code.
As to persons other than peace officers making an arrest, or
assisting in the same, see the following sections of the Code: 28,
29, 31, 32, 33, 34 and 36.
By sec. 36, everyone is justified in arresting without warrant
any person whom he finds by night committing any offence. And
see further sees. 37, 42, 43, 44, 45, 46.
A man's house is his castle for safety and repose to himself
and his family ; but, if a stranger who is not of the family upon a
permit taketh refuge in the house of another, this rule doth not
extend to him, it is not his castle, he cannot claim the benefit of
sanctuary therein. Post. 320, and Semayne's Case, supra.
And it is always to be remembered that this rule must be
confined to the case of arrest upon process in civil suits only ; for,
where a felony hath been committed, or a dangerous wound given,
or even where a minister of justice cometh armed with process
founded upon a breach of the peace, the party's own house is no
sanctuary for him; in these cases, the justice which is due to the
public must supersede every pretence of private inconvenience.
Fast. 320.
In all these cases, if an officer, to serve any warrant, enter into
a house, the doors being open, and then the doors are locked upon
him, he may break them open in order to regain his liberty. 2
Hawk. IJf, sec. 11.
If the party arrested escapes, the officer upon fresh pursuit
may take him again and again, so often as he escapeth, although
he were out ol view, in that he shall fly into another town or
country. Ddlt. ch. 169.
No one shall break open any building to search for a deserter
without a warrant for the purpose. See sec. 657 of the Code.
As provided by sec. 661, in case of fresh pursuit, the accused
may be arrested on the warrant at any place in an adjoining terri-
torial division within seven miles of the border of the first men-
tioned division.
The " first-mentioned division " is the territorial division in
which the warrant issued.
By sec. 2, sub-sec. 36 of the Code, a territorial division is de-
fined as follows: —
PEOCEEDINGS ON SUNDAYS AND HOLIDAYS. 16''^
36. " Territorial division " includes any county, union of countien,
township, city, town, parish or other judicial division or place to whicb
the context applies.
The seven miles mentioned are measured, not by the nearest
practicable road, but by a straight line from point to point on the
horizontal plane "as the crow flies." Lalce v. Butter, 24 L. .1
Q. B. N". S. 273 ; R. v. Walden, 9 Q. B. 76.
Warrants may not only be executed on Sundays, but upoi<
statutory holidays.
"Holiday" is defined by sec. 34, sub-sec. 11, of "The Inter-
pretation Act," R. S. C, ch. 1, as follows : —
11. "Holiday" includes Sundays, New Year's Day, the Epiphany,
Good Friday, the Ascension, All Saints' Day, Conception Day, Easter
Monday, Ash Wednesday. Christmas Day, the birthday or the day fixed by
proclamation for the celebration of the birthday of the reigning sovereign,
Victoria Day, Dominion Day, the first Monday in September, designated
Labour Day, and any day appointed by proclamation for a general fast or
thanksgiving.
" Dominion Day " is the first of July and, if that date falls or
a Sunday, then the second of July.
" Victoria Day " is the 24th of May and, if that day falls on u
Sunday, then the twenty-fifth of May.
A preliminary enquiry cannot be held on a statutory holiday/ .
B. V. Murray, (1897) 1 C. C. C. 452.
And such an enquiry cannot be held on a Sunday. R. y.
Cavelier, (1896) 1 C. C. C. 134; Re Cooper, 5 P. E. 256; but see
Ex parte aa/rland, 8 C. C. C. 385; and see Re McGilUvray, (1907)
13 C. C. 0. 113.
As a warrant can only issue after an information in writing
and under oath has been received by a justice, it therefore follows
that an information or complaint may be taken and laid upon a
Sunday or statutory holiday. As it has been held, in R. v. Ettin-
ger, supra, that the taking of an information is a " judicial act,"
this means a considerable departure from the common law, under
which only ministerial acts could be performed on Sunday.
Backing the Warrant.
662. If the person against whom any warrant has been issued cannot
be found within the jurisdiction of the justice by whom the same was
issued, but is or is suspected to be in any other part of Canada, any justice
within whose jurisdiction he is or is suspected to be, upon proof being made
on oath or affirmation of the handwriting of the justice who issued thfi
same, shall make an endorsement on the warrant, signed with his name,
authorizing the execution thereof within his jurisdiction.
2. Such endorsement shall be sufficient authority to the person bringinjsr
such warrant, and to all other persons to whom the same was originally
168 BACKING- WARRANTS OF ARREST.
directed, and also to all constables of the territorial division where the
warrant has been so endorsed, to execute the same therein and to carry
the person against whom the warrant issued when apprehended, before the
justice who issued the warrant or before some other justice for the same
territorial division.
3. Such endorsement may be in form &
FOBK 8.
(Section 662.)
Endorsement in Backing a Warrant.
County of )
Province of [•
Canada, 1
Whereas proof upon oath has this day been made before me ,
a justice of the peace in and for the said county of , that the
name of J. S. to the within warrant subscribed, is of the handwriting of
the justice of the peace within mentioned; I do, therefore, hereby authorize
W. T., who brings to me this warrant, and all other persons to whom this
warrant was originally directed, or by whom it may be lawfully executed,
and also all peace officers of the said county of , to execute
tHe same within the said last-mentioned county.
Given under my hand, this day of , in the year
at , in the county aforesaid.
J. Jm,
J. P., {name of county).
The backing of a warrant is a purely ministerial act, and the
justice who issued the warrant is responsible for an arrest under
it, although the warrant is backed by another justice and executed
in another county. Jones v. Grace, 17 0. R. 681.
The endorsements on the warrant must shew that the signature
of the justice issuing the warrant was proved to the justice back-
ing it. Reid v. Maybee, 31 U. C. C. P. 384.
An arrest made in an outside county before the warrant is
back is not legal, but, if this defect is remedied, the accused may
be held or re-arrested on a warrant so endorsed without his being
first set free from the original custody. Southivick v. Hare,
(1S93) 24 0. R. 528.
" If the warrant itself be defective, if it be not enforced by a
proper officer, or if it be executed out of the jurisdiction without
being backed by the proper magistrate . . . the party may
legally resist the attempt to apprehend him and even third per-
sons may lawfully interfere to oppose it, doing no more than is
uecessary for that purpose." Chitty's Grim. Law, Vol. I., p. 60.
" For, if a man without authority attempt to arrest another
illegally, it is a breach of the peace, and any other person may
EXECUTION OF WARRANTS. 169
lawfully interfere to prevent it, doing no more." Lord Ellen-
borough^ in King v. Osmer, 5 East, at p. 308.
By the Criminal Code Amendment Act of 1909, sub-sec. 4 was
added to sec. 662, making provision for the execution of war-
rants against persons who are confined in any prison within the
province and bringing them before justices on preliminary inquiry
as follows: —
" 4. If the person against whom such warrant has been issued is then
confined for some other cause in any prison within the province then, upon
application to the judge of any superior, county or district court, and upon
production to him of the warrant with an affidavit setting forth the above
facts, such judge if he is satisfied that the ends of justice require it, may
make an order in writing addressed to the warden or keeper of such prison,
or to the sheriff or other person having the custody of the prisoner, to
bring up the body of such person before the justice who is holding the
preliminary inquiry from day to day, as may be necessary for the purposes
of such inquiry, and such warden, keeper, sheriff or other person, apon
being paid his reasonable charges in that behalf, shall obey such order."
A warrant issued for the apprehension of a person charged
with an indictable offence may be executed anywhere in Canada,
provided the warrant is backed in accordance with the provisions
of this section. If a person against whom the warrant is issued
cannot be found in the county in which it has been backed, the
warrant may be backed again in any other county and so on from
county to count)^ and province to province until the offender is
apprehended. And, if the offender has not been so apprehended
and returns to the county in which the warrant was originally
issued, he may still be apprehended there on the original warrant
notwithstanding such backings.
It is to be remembered that by the provisions of sub-sec. 3 of
sec. 660 of the Code — supra — a warrant is not returnable at any
particular time, and it remains in force until it is executed.
Indictable Offences Committed on the Seas.
656. Whenever any indictable offence is committed on the high seas,
or in any creek, harbour, haven or other place in which the Admiralty
of England have or claim to have jurisdiction, and whenever any offence
is committed on land beyond the seas for which an indictment may be pre-
ferred or the offender may be arrested in Canada, any justice for any
territorial division in which any person charged with, or suspected of,
having committed any such offence, is or is suspected to be, may issue his
warrant in the form 4 in schedule one hereto, or to the like effect, to
apprehend such person, to be dealt with as herein and hereby directed.
The Admiralty jurisdiction of England extends over British
vessels when in the river of foreign territory where the tide ebbs
and flows, and where great ships go. All persons, whatever their
nationality, while on board British vessels on the high seas, or in
170 PROCEDURE AFTER ARREST.
foreign rivers where the tide ebbs and flows, are likewise amenable
to British law. B. v. Carr, 52 L. J. M. 0. 12.
Arrest of Suspected Deserter.
657. Every one who is reasonably suspected of being a deserter from
His Majesty's service may be apprehended and* brought for examination
before any justice of the peace, and if it appears that he is a deserter, he
shall be confined in gaol until claimed by the military or naval authorities,
or proceeded against according to law.
2. No one shall break open any building to search for a deserter
unless he has obtained a warrant for that purpose from a justice of the
peace, — such warrant to be founded on aflSdavit that there is reason to
believe that the deserter is concealed in such building, and that admittance
has been demanded and refused.
3. Every one who resists the execution of any such warrant shall
incur a penalty of eighty dollars, recoverable on summary conviction before
two justices.
Procedure After Arrest.
If the arrest be by virtue of a warrant, when the officer hath
made the arrest, he is forthwith to bring the party according to
the direction of the warrant. Wright v. Court, 4 B. & C. 596.
If it be to bring the party before the justice who granted the
warrant specially, then the officer is bound to bring him before
the same justice; but, if the warrant be to bring him before any
justice of the county, then it is in the election of the officer to
bring him before what justice he thinks fit and not in the election
of the prisoner. Foster's Case, 5 Eep. 59 ; 1 Hale 582, 2 Hale
112.
But if the time be unseasonable, as in or near the night whereby
he cannot attend the justice, or if there be danger of a present
rescue, of if the party be sick, he may secure him in the stocks ( ?)
or in a house till the next day or such time as it may be reason-
able to bring him. 2 Hale 120.
And when he hath brought him to the justice yet he is in law
still in his custody till the justice discharge, or bail, or commit
him. Ibid.
But it is said the constable is not bound to return the warrant
itself, but may keep it for his own justification, in case he should
be questioned for what he had done, but only to return what he
had done upon it. R. v. Wyatt, 2 Ld. Raym., at p, 1196; 1 East
P. C. 319.
The procedure under the Code when an arrest is made upon an
endorsed or backed warrant is provided for by sec. 663, as follows :
PROCEDURE AFTER ARREST ON BACKED WARRANT. 171
663. If the prosecutor or any of the witnesses for the prosecution are
in the territorial division where such person has been apprehended upon a
warrant endorsed as provided in the last preceding section, the constable
or other person or persons who have apprehended him may, if so directed
by the justice endorsing the warrant, take him before such justice, or
before some other justice for the same territorial division ; and the said
justice may thereupon take the examination of such prosecutor or wit-
nesses, and proceed in every respect as if he had himself issued the
warrant.
In other cases where an arrest has been made, the procedure
is provided by sec. 664.
664. When any person is arrested upon a warrant, he shall, except
in the case provided for in the last preceding section, be brought as soon
as is practicable before the justice who issued it or some other justice for
the same territorial division, and such justice shall either proceed with the
inquiry or postpone it to a future time, in which latter case he shall either
commit the accused person to proper custody or admit him to baU, or
permit him to be at large on his own recognizance, according to the pro-
visions hereinafter contained.
By sec. 664 of the Code, it will be seen that, when any per-
son is arrested on a warrant, except in cases provided for by sec.
663, he should be brought as soon as practicable before the justice
who issued the warrant or some other justice for the same terri-
torial division. The justice before whom the offender is brought
shall either proceed with the inquiry or postpone it to a future
day. If a postponement is granted, the accused shall either be
committed to proper custody, or be admitted to bail, or be per-
mitted to be at large on his own recognizance.
Offences Oommitted out of Jurisdiction.
Where an accused person is brought before any justice charged
with an offence committed out of the limits of the jurisdictit)n of
such justice, the proceedings are governed by sees. 665 and 666
of the Code, as follows : —
665. The preliminary inquiry may be held either by one justice or
by more justices than one.
2. If the accused person is brought before any justice charged with an
offence committed out of the limits of the jurisdiction of such justice, such
justice may, after hearing both sides, order the accused at any stage of
the inquiry to be taken by a constable before some justice having juris-
diction in the place where the offence was committed.
3. The justice so ordering shall give a warrant for that purpose to a
constable, which may be in form 9, or to the like effect, and shall deliver
to such constable the information, depositions and recognizances, if any.
taken under the provisions of this Act, to be delivered to the justice before
whom the accused person is to be taken, and such depositions and recog-
nizances shall be treated to all intents as if they had been taken by the
last-mentioned justice.
666. Upon the constable delivering to the justice the warrant, infor-
mation, if any, depositions and recognizances, and proving on oath or
affirmation, the handwriting of the justice who has subscribed the same.
172 coroner's inquisition.
such justice, before whom the accused is produced, shall thereupon fur-
nish such constable with a receipt or certificate in form 10, of his having
received from him the body of the accused, together with the warrant, in-
formation, if any, depositions and recognizances, and of his havin? proved
to him, upon oath or affirmation, the handwriting of the justice who issued
the warrant.
2. If such justice does not commit the accused for trial, or hold him
to bail, the recognizances taken before the first-mentioned justice shall be
void.
Coroner's Inquisition,
667. Every coroner, upon any inquisition taken before him whereby
any person is charged with manslaughter or murder, shall, if the person or
persons, or either of them, affected by the verdict or finding is not already
charged with the said offence before a magistrate or justice, by warrant
under his hand, direct that such person be taken into custody and be con-
veyed, with all convenient speed, before a magistrate or justice ; or such
coroner may direct such person to enter into a recognizance before him,
with or without a surety or sureties, to appear before a magistrate or
justice.
2. In either case it shall be the duty of the coroner to transmit to
such magistrate or justice the depositions taken before him in the matter.
3. Upon any such person being brought or appearing before any such
magistrate or justice, he shall proceed in aU respects as though such per-
son had been brought or had appeared before him upon a warrant or sum-
mons.
In general, it is the most important duty of a coroner to take
inquests of unnatural and sudden deaths, and this whether they
arise by accident, felo de se, or in prison.
When it happens that any person comes to an unnatural death,
the township shall give notice thereof to the coroner. Otherwise,
if the body be interred before he come, the township shall be
amerced. 1 Burns' Justice, 1211.
By sec. 940 of the Code, it is provided that no one shall be
tried upon any coroner's inquisition.
A person who has been charged by a coroner's inquisition with
being responsible for the death of another shall be proceeded
against as provided in sec. 667 now under discussion. And he
shall be entitled to a preliminary inquiry before a magistrate or
justice, and it is not until after such accused person has been com-
mitted for trial under the provisions of Part XIV., and by a
warrant of commitment under sec. 690, that such person shall be
held for trial for the offence with which he was charged by the
coroner's inquisition. And then, before he is tried, the grand jury
must find a true bill against him.
A coroner's inquest cannot legally be held upon a Sunday.
Be Cooper, 5 P. R. 256.
Although the proceedings were not thereby made illegal, yet
the Court declared it inexcusable carelessness upon the part of the
coroner's inquisition. 173
coroner when the depositions, the finding of the jury and the
signatures of the jury and the coroner were all written in pencil.
B. V. Winegarner, 17 0. E. 208.
The inquisition of a coroner is defective if it does not identify
the body of the deceased as that of the person with whose death
the prisoner is charged; but, if the evidence shews a felony, the
prisoner may be recommitted. R. v. Berry, 9 P. R. 123.
A coroner has jurisdiction to hold and is justified in holding
an inquest if he honestly believes information which has been
given to him to be true, which, if true, would make it his duty
to hold such inquest. R. v. Stephenson, 13 Q. B. D. 331; 15
Oox 679.
See the statutes of the different provinces relating to coroners.
To burn a dead body, instead of burying it, is not a misde-
meanour, unless it is so done as to amount to a public nuisance.
If an inquest ought to be held upon a dead body, it is a misde-
meanour so to dispose of the body as to prevent the coroner from
holding an inquest. R. v. Price, 12 Q. B. D. 247.
A coroner's inquisition is a Court of Record and a Criminal
Court. R. V. Hammond, (1898) 1 C. C. C. 373, 29 0. R. 211;
Thomas v. Churton, (1862) 2 B. & S. 475.
A witness before a Coroner's Court is compelled under the
Canada Evidence Act to answer incriminating questions, such
Court being a Criminal Cburt and a Court of Record, and pro-
ceedings before the coroner are within the jurisdiction of the
Federal Parliament, although no one is there charged with the
offence of causing the death of the deceased. Ihid.; and see R. v.
Hereford, (1860) 3 E. & E. 115; Blackstone, vol. 4, 27 Jf.
A coroner is not a " justice " within the meaning of sec. 687
(now 999) of the Code, which provides for the use of the deposi-
tions taken on a preliminary inquiry upon the trial of an accused
person, where the person who gave evidence is dead, or too ill tw
travel or absent from Canada. R. v. Graham, (1898) 2 C. C. C.
388.
The signed deposition of a witness at a coroner's inquest may
be used on the cross-examination of the witness atihe trial for tlie
purpose of contradiction. R. v. Laurin (No. 3), (1902) 5 C. C.
C. 548.
A Coroner's Court is a Court of Record and the coroner is a
Judge of a Court of Record. A coroner has power himself to
summon the coroner's jury by a mere verbal direction to the
174 SEARCH WARRANTS.
jurors. A post mortem examination may be directed by the
coroner and proceeded with under his direction before the impanel-
ling of the jury. Davidson v. Garrett, (1899) 5 C. C. C. 200.
Coroner summoning a grand jury by order of the Court. R.
V. McGuire, (1898) 4 0. C. C. 13.
A coroner who is a necessary witness, by reason of having
attended the deceased professionally as a physician during the
illness from which death resulted, is disqualified from holding the
inquest. Re Haney v. Mead, (1898) 34 C. L. J. 330.
Search Warrants,
Since a justice of the peace may be called upon to issue a
search warrant, either to recover stolen property or to secure
papers, documents or things which " will afford evidence as to
the commiesiioin of any such offence," it may be useful to insert
here the three sections of the Code which follow :
629. Information for search warrant. Any justice who is satisfied
by informaition upon oatfh in form 1, that there is reasonable ground for
believing that there is in any building, receptacle or place: —
(o) anything upon or in respect of which any offence against this Act
has been or is suspected to have been committed : or
(6) anything which there is reasonable ground to believe will afford
evidence as to the commission of any such offence ; or
(c) anything which there is reasonable ground to believe is intended
to be used for the purpose of committing any offence against the
person for which the offender may be arrested without warrant ;
may at any time issue a warrant under his hand authorizing some
constable or other person named therein to search such building, re-
ceptacle or place, for any such thing, and to seize and carry it be-
fore the justice issuing the warrant, or some other justice for the
same territorial division to be by him dealt with according to law.
629A, If the building, receptacle or place in which such thing as
aforesaid is reputed to be is in some other county or territorial division,
the justice may, nevertheless, issue his warrant in like form modified ac-
cording to the circumstances, and such search warrant may be executed in
such other county or territorial division upon being endorsed by some jus-
tice of that county or territorial division, such endorsement to be in form
2 A, or to the like effect. (Added by 8-9 Edw. VII., c. 9, s. 2.)
630. Execution of search warrant. Every search warrant shall be
executed by day, unless the justice shall by the warrant authorize the con-
stable or other person to execute it at night.
2. Every search warrant may be in form 2, or to the like effect.
631. Detention of things seized; and their restoration. When any
such thing is seized and brought before a justice, he may detain it. taking
reasonable care to preserve it till the conclusion of the investigation, and,
if any one is committed for trial, he may order it further to be detained
for the purpose of evidence on the trial.
2. If no one is committed, the justice shall direct such thing to be
restored to the person from whom it was taken, except in the cases next
hereinafter mentioned, unless he is authorized or required by law to dis-
pose of it otherwise.
SEARCH WARRANTS. 175
It is the duty of a peace officer executing a search warrant to
have it with him at that time. Fanning v. Gough, 18 C. C, C.
66.
A search warrant is not an '' order " under the statute, R. S.
Xova Scotia, 1900, ch, 40, sec. 6, under which convictions and or-
ders must be quashed before actions can be brought in respect of
their enforcement. Johnston v. McDougall, 17 C. C. C. 58.
176 PRELIMINARY INQUIRY.
CHAPTER VII.
Preliminary Inquiry.
Part XIV. of the Criminal Code.
In the previous chapter, we dealt with matters of procedure
relating to the procuring of the attendance of persons accused of
indictable offences before a justice, either by summons or by
warrant.
We will now proceed to discuss the nature of the proceedings
when the accused is before the justice. Such persons may so
come either of their own volition, or by summons, or by being
arrested on a warrant. It is then the duty of the magistrate to
inquire into the matters charged against such persons. For this
purpose, he may summon witnesses to attend before him; and, if
they neglect to so attend, after being summoned, upon proof being
made to him on oath of the service of the summons and that the
person summoned is likely to give material evidence, the justice
may issue a warrant to bring such person before him. This
warrant may be executed anywhere within the territorial jurisdic-
tion of the justice, or if necessary it can be backed, or endorsed,
as provided by sec. 662, and executed anywhere in the Province
out of such jurisdiction.
And, if the justice is satisfied by evidence on oath that any
person within the Province likely to give evidence, either for the
prosecution or for the accused, will not attend to give evidence
without being compelled to do so, then, instead of issuing a sum-
mons, he may issue a warrant in the first instance. This warrant
can be executed anywhere within the jurisdiction of the justice,
or if necessary be backed, or endorsed, as provided by sec. 662.
Any person residing anywhere in Canada out of the Province,
and who is not in the Province, who is likely to give material
evidence, either for the prosecution or for the defence, may be
subpoenaed to attend the inquiry, such subpoena being obtained
by order of a Judge. And, if anyone served with such subpcena
fails to attend the hearing and to obey the subpoena, he may, upon
proof of the service of the subpoena, and his not offering any just
excuse for his non-attendance, be arrested on a warrant issued for
that purpose, and this warrant can be executed anywhere in
Canada upon being properly backed or endorsed.
PROCEDURE ON APPEARANCE BEFORE JUSTICES. 177
A justice has wide powers in holding a preliminary inquiry;
he may regulate the course of the inquiry in any way which may
appear to him desirable, and which is not inconsistent with the
provisions of the Oode.
Procedure on Appearance of Accused Before Justice.
Jurisdiction.
668. When any person accused of an indictable offence is before a
justice, whether voluntarily or upon summons, or after being apprehended
with or without warrant, or while in custody for the same or any other
offence, the justice shall proceed to inquire into the matters charged against
such person in the manner hereinafter directed.
The justice cannot proceed in the absence of the accused even
though he be represented bv counsel or solicitor, k. v. Lepine,
(1900) 4 C. C. 0. 145; E. v. Commins, 4 D. & E. M. C. 94, 8 D.
& E. 344; R. v. Paine, 5 Mod. 163.
If the magistrate on an application for process erroneously
holds that the offence is not indictable, and that he, therefore, has
no jurisdiction to hold a preliminary inquiry in respect thereof,
a mandamus will lie to compel him to do so. R. v. Meehan,
(1902) 5 0. C. C. 312.
" If the magistrate has not exercised his jurisdiction, this
Court will compel him to do so, for parties have a right to his
exercise of that jurisdiction, and he has no right to refuse to do
so. But, if it has been exercised, however erroneously, this Oourt,
which is not a Court of Appeal from the magistrate, has no power
whatever to correct or review his exercise of his jurisdiction.
Lord Coleridge, in Ex parte McMaTion, 48 J. P. 70.
" There is a broad distinction between magistrates declin-
ing to exercise jurisdiction, and exercising it honestly, but er-
roneously." Per Matthew, J., Ihid.
If the duty is of a judicial character, its performance will be
enforced only where it has been refused, and not where it has
been improperly performed, R. v. Middlesex J J., (1839) 9 A.
& E. 540, at p. 546; R. v. Richards, (1851) 20 L. J. Q. B. 351.
Where the magistrate conducted the hearing as a preliminary
inquiry, binding over all the witnesses to give evidence in a
superior Court, and at the conclusion of the examination of the
witnesses for the prosecution addressed the defendant as provided
c.c.p. — 12
178 COURSES OPEN ON PRELIMINARY INQUIRY.
by sec. 591 (now sec. 684), then, after hearing the evidence for
the defence, without objection, convicted the defendant of com-
mon assault and fined him. Held, that the conviction was bad.
Ex parte Duffy, (1901) 8 C. C. C. 277.
The above is an example of a magistrate mixing up a sum-
mary trial with a preliminary inquiry.
In a preliminary inquiry, there are three courses for a justice
to follow: —
(1) If, after he has heard the whole of the evidence, he is of
the opinion that no sufficient case is made out to put the accused
upon his trial, he should discharge him. See sec. 687 of the Code.
(2) If, on the other hand, the justice thinks that the evidence
is sufficient to put the accused on his trial, he should then commit
him for trial by a warrant of commitment. See sec. 690 of the
Code.
(3) If the offence charged is not treason or an offence punish-
able with death, or an offence under sees. 76 to 86 inclusive of
the Code, but is punishable by imprisonment for five years or
more, and, in the opinion of the justice, the evidence adduced is
sufficient to put the accused on his trial, '*but does not furnish
such a strong presumption of guilt as to warrant his committal
for trial," the justice, with some other justice, or a police magis-
trate alone, may, instead of issuing a warrant of commitment,
admit the accused to bail upon his producing sureties to the satis-
faction of the justices, or police magistrate, sufficient to ensure
his appearance at his trial. But, if the offence is punishable by
imprisonment for a term less than five years, the justice may
alone grant bail in such a case. See sec. 696 of the Code.
The provisions relating to preliminar}' hearings of indictable
offences would seem to be inapplicable when the accused is a cor-
poration, because the magistrate could not commit the accused to
gaol for trial, no matter how clear the evidence might be. See,
however, p. 150, supra, as to this point.
Magistrates or justices have no authority to grant bail for a
person actually committed for trial under see. 690. Bail in such
cases can alone be granted by a Judge ot a iSupreme Court, or of
a County Court. See see. 700 of the Code.
"Much latitude is contemplated in the course of this pre-
liminary investigation, both in the way of varying and amending.
COURSES OPEN OX PRELIMIXARY INQUIRY. 179
and in the reception of evidence, so that the scope of the inquiry
may he enlarged, and mattei's touched upon beyond the scope of
tlie original charge. This consideration has been overlooked in
regard to many of the cases cited. I mean the wide distinction
which exists between the magistiate who has plenary jurisdiction
to try the offence in a summary way, and the justice who is deal-
ing with a preliminary inquiry in respect to an indictable offence
which is to be passed on to another tribunal for trial. The dis-
tinction is adverted to very clearlv bv Lord Eussell. C.J., in The
Queen v. Broivn, [1895] 1 Q. B. 119, at pp. 126 and 127." Boyd,
C, at p. 91, in R. v. Phillips, (1906) 11 C. C. C. 89.
The refusal of a magistrate holding a preliminary inquiry
to order particulars in a general charge of " conspiracy to defraud
the public " is not a ground for prohibition. Ibid.
An information laid in general terms charging that the accused
did in specified years " conspire with others whose names are un-
known, by deceit, falsehood and other fraudulent means to de-
fraud the public," sufficiently states an offence under the Code,
sec. 394 (now sec. 444), to give jurisdiction to a magistrate to
hold a preliminary inquiry. Ibid.
As to particulars being ordered in proceeding upon an indict-
ment, see sees. 859, 860 and 863 of the Code.
The magistrate who holds a preliminary inquiry on a charge '
preferred may commit an accused person, on any one or more
charges disclosed by the evidence. R. v. Mooney, (1905), 11 C
(^. v. 333: —
" There is no law which prohibits a justice making the prelim-
inary investigation from committing the prisoner for trial for sev-
eral different indictable offences the commission of which is dis-
closed by the evidence. He is then merely putting the prisoner on
his trial. His duty is to inquire into the matters charged ao-ainst
the prisoner. After the inquiry has been made the justice shoulrl
discharge the prisoner if the evideupft dops nof. justify his further
detention. But, if the evirlence is sufficient to put him on trial,
the justice is obliged to commit him for trial. The evidence may
justify him to commit on the original charge made in the informa-
tion, or some one, or more, indictable offences." Madore, J., at
p". i\M, Ibid. ■ "
180 PROCEDURE ON PRELIMINARY INQUIRY.
Magistrates conducting a preliminary inquin- must not on
its conclusion convict the accused of a lesser offenqe over which
they may have summary jurisdiction, although such offence was
proved by the evidence adduced. R. v. Mines, (1894) 1 C. C. C.
217.
It appears that in this case, R. v. Mines, the magistrates' juris-
diction was founded upon an information charging the defendant
with shooting with intent to murder. The magistrates were thus
charged with the duty of investigating that offence, and commit-
ting for trial if they found a prima facie case had been proved.
Xot finding sufficient evidence to warrant this course they adopted
the expedient of seeking to punish, the defendant in a short way
as if they were conducting a summary trial, and convicted the
defendant of " procuring a revolver with intent thereby unlaw-
fully to do injury to one J. S."
Boyd, C, in delivering judgment said, p. 218: "The jurisdic-
tion invoked was to commit for trial; they of their own motion
changed this at the close of the case into jurisdiction to convict.
That is an unwarrantable course ; to convict on a charge not form-
ulated, as to which the evidence was not addressed, upon which the
defendant was not called to make his defence, and as to which
no comiplaint was laid before them." Ibid. See also R. v. Dungey,
0 C. C. C. 38, p. 182, post.
" Semhle, an accused person may ujpon a preliminarj' inquiry
waive the preliminary examination into the charge, and consent
to be committed for trial without any depositions being taken."
This statement is from the head-note in R. v. Gibson, (1896)
3 C. C. 0. 451. There is notliiiiff in either the judgment of
Meagher, J., or Graiia:m, E.J., which would warrant this con-
clusion being laid, down as a legal proposition. Graha:m, E.J.,
dj)es not even refer to the point. Ail that Meagher, J., says at
page 4(jl, IS, "JNor is there any proTtSion (m th5 L'oae) enat)Ting
an accused party to waive the preliminary examination and con-
sent to be committed for trial. Such a course would, I suppose,
be open to the accused."
It is, however, submitted that such a course is not open and
would be entirely opposed both to the letter and the spirit of the
enactments in the Code relating to preliminary inquiry. The in-
troduction of such a loose, unauthorized mode of conducting an
inquiry into an indictable offence is to be deprecated.
PROCEDURE ON PRELIMINARY INQUIRY. 181
As there is no provision in the Oode enabling an accused party
to waive the preliminary inquiry, it is probable that such a pro-
vision was purposely omitted.
Section 66.8 of the Code specifically provides that when any
person accused of an indictable offence is before a justice . . .
" the justice shall proceed to inquire into the matters charged
against such person in the manner hereinafter directed." One
need not stop to consider the directions as contained in the sections
of the Code immediately following 668 as to enlarging the hear-
ing, and so on, but pass on to section 682, where it is laid down
that " where the accused is before a justice holding an inquiry,
such justice shall take the evidence of the witnesses called on the
part of the prosecution." This is apparently imperative. Such
evidence shall be given upon oath, and in the presence of the ax;-
cused, and shall be taken down in writing and read over and
signed, when not taken in shorthand.
The justice is not only required to take the evidence; but,
before he can either discharge the accused or commit him for trial,
he must base or form his opinion, in the former case, "upon the
whole of the evidence," and in the latter where he " thinks that
the evidence is sufiicient" to put the aJccused on his trial.. {Vide
sec. 690).
One can trace these provisions of the Code, Part XIV., relat-
ing to preliminary inquiries, back to the Imperial Act, 11 and
12 Vic, ch. 42, where these provisions had their origin, and
nothing will be found to warrant any such suggestion, either by
decided cases, or by statutory enactment, that "an accused per-
sO'n can waive examination of witnesses upon a preliminary in-
quiry.''
The provisions of the Code relating to preliminary investiga-
tion into indictable offences are very necessary and most essential
to the proper administration of justice, and it is highly important
that magistrates should avoid any departure from the same.
The evidence in a preliminary inquiry must be taken in the
presence of the justice. Where a magistrate swore the witnesses,
and they were then taken into another room and their evidence in
chief taken in shorthand by a stenographer, and not in the pre-
sence of the magistrate, such depositions were illegally taken,
although the counsel for the accused had the opportunity of after-
wards cross-examining the witness before the magistrate. R.
V. Traynor, (1901) 4 0. C. C. 410.
182 PROCEDURE ON PRELIMINARY INQUIRY.
It is not competent for magistrates, where an information
charges an offence which they have no jurisdiction to try sum-
marily, to convert the charge into one which they have jurisdic-
tion to try, and so to try it on the original information. R. v.
Thingey, (1901) 5 C. C. C. 38.
Where a magistrate is applied to for process in respect of an
indictable offence which cannot be dealt with summarily, no fees
can be demanded by him therefor. R. v. Meehan (No. 2), (1902)
5 C. 0. C. 312.
A person discharged by a justice on a preliminary inquiry for
an indictable offence may be summoned again before the same, or
another justice, on a fresh information for the same offence. If
the accused is committed for trial on the second inquin- the
depositions on the first, when accused is discharged, need not
be transmitted to the clerk of the peace. R. v. Hannay, (1905)
11 C. C. C. 23; R. v. Burl-e, 19 C. C. C. 141.
There is no doubt that a charge dismissed by one magistrate
may be heard by another. Martin, J., p. 25, R. v. Hannay, supra.
A preliminary in^qjuiry is, of course, as its name implies, not
final in its nature. R. v. Guerin, 16 Cox 596-601.
At common law a dismissal by magistrates is not tantamount
to an acquittal u$>on indictment. R. v. Waters, 12 Cox 390.
But under the Code in summary trials for indictable offences
under Part XVI., by sefcs. 790 and 791, an acquittal is a bar to a
charge upon a fresh information for the same offence. R. v.
Cameron, (1901) 4 C. C. 0. 385.
Magistrates and justices should bear in mind the difference
between holding a preliminary inquiry under Part XIV., and try-
ing a case under Parts XV. and XVI. of the Code.
Under Part XIV. the proceedings are of the nature of an
inquiry, to see whether the accused should be tried for the offence
charged against him before another tribunal. In such an inquiry.
tfiev are not concerned with the guilt or innocence of tlio accused ^
and are not called upon to make any pronounreiuent respecting'
the same. If in the opinion of the justice a sufficient case is not
made out to put the accused on trial, then he should be discharged.
On the other hand, if of the opinion that the evidence is sufficient
to put the accused upon his trial, then the justice shall commit
him for trial by a warrant of commitraent or grant bail as permit-
ted by section 696.
PROCEDURE ON PRELIMINARY INQUIRY. 183
He has only to find evidence of a probable ease of guilt to jus-
tify the committal for trial, and has not to deal with the prepon-
derance of testimony and anv do\i>>t shoiilrl he resolved in favour
of the committal. R. v. Odell 22 C. C. C. 39.
Under Parts XV. and XVI., the justice is to ascertain from the
evidence as to whether or not the accused is guilty of the ofEence
with which he is charged, and any reasonable doubt should be re-
solved in favour of the accused.
Under Part XV., relating to summary convictions, the justice,
having heard what each party has to say, and the witnesses and
evidence adduced, shall consider the whole matter and determine
the same, and convict or make an order against the defendant, or
dismiss the information or complaint as the case may be. This
means a final determination of the matter so far as the justice is
concerned. See sec. 726.
If the justice dismisses an information under Part XV. he
may, when so required, make an order of dismissal and give the
defendant a certificate. This certificate when (produced shall
without further proof be a bar to any subseqjuent information or
complaint for the same matter against the defendant. See sec. 730
of the Cbde.
Under Part XVI. relating to summary trials of indictable of-
fences, the proceedings, so far as the final results are concerned, are
identical with a trial upon an indictment before a judge and jury,
except that the magistrate acts as both judge and jury. If he finds
the charge proved, he then convicts the accused of the offence with
which he is charged, and commits the accused to gaol or otherwise
penalizes him as he sees fit. And such conviction shall have the
same effect as a conviction upon an indictment for the same offence.
See sec. 791. If the magistrate finds the offence not proved, he
shall dismiss the charge, and make out and deliver to the person
charged a certificate of dismissal. See sec. 790.
And by sec. 792, every person who obtains a certificate of dis-
missal, or is 'convicted, under the provisions of this part, shall
be released from all further or other criminal proceedings for the
same cause.
We now resume the consideration of Part XIV.
" It has never been contended that the discharge of a person
accused of a felony committed within the Province when brought
up before a justice of the peace for examination, whether such
'discharge should be attributable to the mhrmity of the judgment of
\^^
184 PROCEDURE ON PRELIMINARY INQUIRY.
the justice, or the insuflHciency of the evidence adduced before him,
operates as a bar to the same person being again brought before
another justice and committed upon the same charge, upon the
same or dilferent evidence.'' Gwynne, J., in R. v. Morton, 19
0. P. 9, at p. 26.
On a preliminary inquiry before two justices, if one decides in
favor of committal and the other to dismiss, the preferable course
is to adjourn the inquiry, to be heard de novo after calling in
another justice or justices.
The disagreement of two justices holding a preliminary in-
quiry is not equivalent to a dismissal of the charge, although no
adjournment is made and nothing further is done in the prosecu-
tion.
The justices might perhaps have been compelled by mandamus
to make an order whereby the preliminary inquiry would be ter-
minated either by a dismissal of the charge, or the committal of
the accused for trial. Durand v. Forrester, (1908) 15 C. C. C.
125, 18 Man. R. 444, and see Kinnis v. Groves, 67 L. J. Q. B.
584, and Bagg v. Colquhoun, [1904] 1 K. B, 556, and Baxter
V. Gordon, 13 0. L. E. 598.
When an accused person is summoned to appear before a justice
of the peace having jurisdiction to conduct the proceedings without
associate justices, other justices of the peace are not entitled to
interfere in the preliminary inquiry, or to be associated with the
summoning justice except at the latter's request. R. v. McBae,
(1897) 2 C. C. C. 49.
If it is made to appear to the justice that there is a reasonable
necessity for more specific information to identify the transaction
referred to in the complaint, the justice may, on the application of
the accused, order that further and better particulars should be
given, but such an order is entirely in the discretion of the justice.
R. V. France,. (1898) 1 C. 0. C. 321, and see R. v. Stapylton, 8
Cox, 69.
The accused upon arrest shewed signs of insanity. The magis-
trate, upon being advised of this fact by the police oflBcers, ad-
journed the preliminary hearing and directed her commitment for
the purpose of medical examination without having the accused
before him. Held, the prisoner could only be remanded after hav-
ing been personally brought before the justice. Re Saraidt,
(1905) 9 C. C. C. 48. Distinguished in R. v. Bouchard, 20 C. C.
C. 95.
lEREGULARITIES^ DEFECTS AND VAEIANCES. 185
A preliminary inquiry in a criminal matter commenced, before
one magistrate cannot be continued fay another. But, if the magis-
trate who commenced the inquiry dies, or is deposed from office, or
resigns or goes abroad, another magistrate may act, but he must
commence de novo. Bertrand v. Angers, Q. E. 21 S. C. 213.
Irregularities and Variances.
669. No irregularity or defect in the substance or form of the sum-
mons or warrant, and no variance between the charge contained in the
summons or warrant and the charge contained in the information, or be-
tween either and the evidence adduced on the part of the prosecution at
the inquiry, shall affect the validity of any proceoding at or subsequent
to the hearing.
670. If it appears to the justice that the person charged has been
deceived or misled by any such variance in any summons or warrant, he
may adjourn the hearing of the case to some future day, and in the mean-
time may remand such person, or admit him to bail as hereinafter men-
tioned.
An information and. warrant of arrest thereunder, charging the
accused as an accessory to the yiolation of a statute named, without
specifying the fact as to which he is alleged to be an accessory, is
void for uncertainty.
Such a warrant charges no offence, and neither it nor a remand
thereon is yalidated by sec. 578 (now sec. 669) of the Code. R. v.
HoUey, (1893) 4 C. C. C. 510.
If the information incorrectly describes the ownership of any
property, Ralph v. Hurrell, 44 L. J. M, C. 145, or the date of the
offence or a street number is incorrectly stated, the information
should be amended. Mayor of Exeter v. Heamon, 37 L. T. 635 :
R. V. Crawford, 20 O. C. C. 49.
But where the wrong person is summoned it is otherwise; in
such a case there should be a new summons. Oxford v, SanTcey, 54
J. P. 564.
In R. V. Davis, 20 C. C. C. 293, the information and warrant
described the accused as " Big Boy of Calgary," and, before plea,
the infoi-mation Avas amended substituting the right name "Wil-
liam Davis," without being resworn. Held, that the magistrate
had no jurisdiction to proceed on the amended information in the
face of the objection then taken that there was no sworn inform-
ation laid against the accused.
The charge of stealing "in or from a building" is for one
offence only, and is not, because of the disjunctive, void for dup-
licity or uncertainty. R. v. White, (1901) 4 C. C. C. 430.
186 PROCURING ATTENDANCE OF WITNESSES.
A conviction under the Army Act for "buying, exchanging,
taking in pawn, detaining or receiving" a war medal from a
Boldier, held as charging one offence only, and not bad for un-
certainty. R. V. Brine, (1904) 8 C. C. C. 54.
Procuring Attendance of Witnesses.
671. If it appears to the justice that any person being or residing
within the province is likely to give material evidence either for the pro-
secution or for the accused, on such inquiry, he may issue a summons under
his hand, requiring such person to appear before him at a time and place
mentioned therein to give evidence respecting the charge, and to bring with
him any documents in his possession or under his control relating thereto.
2. Such summons may be in form 11, or to the like effect.
672. Every such summons shall be served by a constable or other
peace officer upon the person to whom it is directed either personally, or,
if such person cannot conveniently be met with, by leaving it for him at
his last or most usual place of abode with some inmate thereof apparently
not under sixteen years of age.
673. If any one to whom such last-mentioned summons is directed
does not appear at the time and place appointed thereby, and no just
excuse is offered for such non-appearance, then after proof upon oath that
such summons has been served as aforesaid, or that the person to whom
the summons is directcfl is keeping out of the way to avoid service, the
justice before whom such person ought to have appeared, if satisfied by
proof on oath that such person is likely to give material evidence, may
issue a warrant under his hand to bring such person at a time and place
to be therein mentioned before him or any other justice in order to testify
as aforesaid.
2. The warrant may be in form 12, or to the like effect.
3. Such warrant may be executed anywhere within the territorial jur-
isdiction of the justice by whom it is issued, or, if necessary, endorsed as
provided in section six hundred and sixty-two and executed anywhere in
the province out of such jurisdiction.
It would seem that the magistrate has power to bring before
him any witnesses who may be able to give material evidence on
behalf of the defendant. 3 Just. Coke, 79; J4. Bla. Com. 359.
Only the justice before whom the information is laid has auth-
ority to issue a summons for a witness under this section (671).
It gives no authority to a justice who is a stranger to the proceed-
ings instituted to summon a witness to appear before the justice
who took the information. Bryne v. Arnold, 24 X. B, R. 161.
A justice cannot be ordered to attend at the house of an infirm
witness to take his depositions. Ex parte Kimbalton, 25 J. P. 759.
5 L. T. 347.
This last case applies to the trial of offences under Summary
Convictions, Part XV. of the Code.
As to indictable offences it is provided by sec. 995 of the Code
that the evidence of any person dangerously ill may be taken under
TAKING EVIDENCE OF SICK PERSONS. 187
commission, and this either at the instance of the Crown, or of
the prisoner or defendant. The Commissioner is appointed by the
order of a Judge. The prO'vision of this section can he invoked in
a preliminary inquiry. See R. v. Verral, 6 C. O. C. 325,
At the trial of an indictable offence the presiding Judge may,
with the consent of counsel for the Crown and for the prisoner
respectively, adjourn the hearing to a private house within the
same count}' tor the purpose of taking there the evidence of a
witness who is too ill to be moved therefrom, and may order that
the Court and I'ury proceed there for that purpos^. R. v. Rogers,
(156^) 6 C. C. C. 419.
In the above case the trial Judge, Hannington, J., sitting in
appeal, said, " Besides, as the case shews, I took the precaution to
obtain the consent of the prisoner's counsel to what was done, and,
as this is a matter not going to the Jurisdiction of the Court, the
prisoner is bound by that."
Two of the other Judges, McLeod and Gregory^ JJ., also seem
to base their judgment upon the fact that the course adopted was
by consent of the prisoner's counsel. Query, if counsel had not
consented? This seems to be answered by Barker, J., who said:
" This trial was properly commenced when the learned Judge
thought that it was in the interest of the administration of justice
to adjourn the Cburt to another plaice. I think that he had the
right to do it."
If it is in the interest of justice to adjourn the Court to a
place other than where it usually sits, for the purpose of examining
a witness who is too ill to attend the Court, and the prisoner is
present at such examination, and, if he is represented by counsel,
and his counsel is also present, and full opportunity is given for
the cross-examination of the witness, there seems nothing to pre-
vent such a proceeding so far as reason and law can provide, it
being done " in the interest of justice." There is no provision in
the Code against such a proceeding.
Besides, such a course of action is permissible in the conduct of
a preliminary inquiry, by special provision, see sub-sec. (c) of sec.
679 of the Code, post, where it is provided that the justice may
adjourn the hearing of the matter " from time to time, and change
the place of hearing if, from the absence of witnesses, the inability
of a witness, who is ill, to attend at the place where the justice
usually sits, or from any other reasonable cause it appears desirable
to do so."
188 EXAMINATION OF WITNESSES,
This 'course has been taken by the author in a preliminary hear-
ing where a witness was so badly injured that he could not attend
the Court, and an adjournment was had to the house of the wit-
ness, and the evidence taken in his bed-room, the prisoner and his
counsel being present and full opportunity for cross-examination
given. Evidence has also been taken in this way at the bedside of
a patient in hospital, the prisoner and his counsel being present.
The whole proceedings of the examination should be in the
presence and hearing of the accused and of the justice. See R. v.
Trevane, (1902) 6 0. C. C. 125, 4 0. L. K. 875. B. v. Paine, 5
Mod. 163 ; B. v. Comrmns, 4 D. & E. M. O. 94, 8 D. & R. 344.
The witness should be informed as to the purpose for which he
is required to give evidence, or, in other words, that there is a
person under charge against whom he is required to give evidence.
Cropper v. Horton, 4 D. & R. M. C. 42, 8 D. & R. 167.
The summons to the witness issued under sec. 671, form 11,
should be directed to the witness, and a short statement of the
offence with which the accused is charged similar to that in the
summons, or warrant, should be set out, and the time and place
where the witness is to attend. If he is to bring with him any
documents or papers, this should be so stated, and the documents,
or papers, specified in suoh a manner by name and date or other-
wise, that they can be identified to the witness. This is called
a subpoena duces tecum, which commands him to attend with the
documents in question. It is no excuse that the legal custody of
the instrument belongs to another, if it be in the actual custody
of the witness. He must bring it with him and leave to the Court
the decision upon any objection against its production. Amey v.
Long, 9 East. 485.
If the document requires no proof from the witness, and the
party by whom he is called does not wish to examine him, he need
not be sworn, and, if sworn by mistake, he cannot be cross-
examined. Perry v. Gibson, 1 A. & E. 48.
Every summons for a witness shall be served by a constable, or
other peace oflfiicer, either personally upon the person to whom it
is directed, or by leaving it for him at his last or most usual place
of abode with some inmate thereof apparently not under sixteen
yeans of age.
The mode of service of such a summons is practically the same
as that of a summons issued against an offender, and for further
particulars as to such service, see the last chapter.
SECURING ATTENDANCE OF "WITNESSES. 189
If the witness fails to obey the summons, then, after proof
upon oath, (a) that such summons has been served as aforesaid,
(6) or that the person to whom the summons is directed is keep-
ing out of the way to avoid service, (c) if satisfied by proof on
oath that such person is likely to give material evidence, the
justice before whom such person ought to have appeared may issue
a warrant to bring such person at a time and place to be therein
mentioned before him or any other justice to testify. The warrant
is to be in Form 12, and can be executed anywhere in the terri-
torial jurisdiction of the justice by whom it is issued, or if neces-
sary, be endorsed, or backed, as provided in sec. 662 of the Code,
and executed anywhere in the province out of such jurisdiction.
Where a magistrate had refused to issue a warrant for a wit-
ness, Meagher, J., in R. v. Clements, (1901) 4 0. O. C. 553, at
p. 559, said:
'' I shall assume that the magistrate's conclusion was erroneous.
I do so for the present purposes only, and not because I think the
law is so, I do not wish to be understood as giving an opinion
one way or the other, but may say that my inclination is to hold
that he has a discretion in the matter and, although the reason for
his conclusion may not have been sound, other sufficient reasons
may have existed which justified the refusal of the application. It
can be readily seen that, if the magistrate is bound to issue a war-
rant in every instance, and for every witness who fails to yield
obedience to a summons to appear and testify, the defendant is
possessed of a powerful weapon by which he may effectively delay
the trial, and especially so if he summons a party who colludes
with him and agrees not to appear upon the summons."
The proceedings in R. v. Clements were under the N". S. Liquor
License Act, but the reasoning of Meagher, J., equally applies
to preliminary inquiries under the Code, and it is submitted that
the wording of sec. 673 strengthens the view that the question
of issuing the warrant is one in the discretion of the justice.
Securing Attendance of Witnesses at Trials.
By sec. 971 of the Code, it is provided that every witness duly
subptenaed to attend and give evidence at any criminal trial before
any Court of criminal jurisdiction, shall be bound to attend and
remain in attendance throughout the trial.
Section 977 provides for compelling the attendance of wit-
nesses at the trial by warrant issued by the trial Judge.
190 PROCEDURE AGAINST DEFAULTING WITNESS.
Section 973 provides for the apprehension of persons within
the province wlio are likely to give material evidence by warrant
issued by any Judge of a Sujperior or County Court, and for the
detention of such person till he gives evidence, or for his release
on recognizance conditioned for his appearance to give evidence.
Section 974 provides for issuing subpoenas for witnesses in
criminal cases and service of the same anywhere in Canada.
Section 975. And, if the subpoena is disobeyed, proceedings may
be taken by the Court against such witness for contempt or other-
wise.
And 'by sec. 976 the Courts of the several provinces are de-
clared to be auxiliary to one another " for the /purposes of this
Act'' (The Criminal Code), and any order, judgment or decree,
made by the Court issuing the writ of subpoena may be enforced,
or acted upon, by any Court in the province in which such witness
resides.
Where a police magistrate, acting within his jurisdiction, issues
his warrant for the arrest of a witness who has not appeared in
obedience to a subpoena, he ds not, in the absence of malice, liable
in damages, even though he may have erred as to the sufficiency of
the evidence to justify the arrest. The right of the police to
search or handcuff a /person arrested on a warrant to compel at-
tendance as a witness, and the duty ' of the constable making
the arrest, is considered by Maclexxan, J.A., in Gordon v. Deni-
son, 22 A. R. 315 and 24 0. E. 576.
Procedure against Defaulting "Witness.
674. If a person summoned as a witness under the provisions of this
part is brought before a justice on a warrant issued in consequence of re-
fusal to obey the summons, such person may be detained on such warrant
before the justice who issued the summons, or before any other justice in
and for the same territorial division who shall then be there, or in the
common gaol, or any other place of confinement, or in the custody of the
person having him in charge, with a view to secure his presence as a
witness on the day fixed for the trial ; or in the discretion of the justice
such person may be released on recognizance, with or without sureties, con-
ditioned for his appearance to give evidence as therein mentioned, and to
answer as for contempt for his default in not attending upon the said
summons.
2. The justice may, in a summary manner, examine into and dispose
of the charge of contempt against such person, who, if found guilty, shall
be liable to a fine not exceeding twenty dollars, or to imprisonment in the
common gaol, without hard labour, for a term not exceeding one month, or
to both such fine and imprisonment, and may also be ordered to pay the
costs incident to the service and execution of the said summons and war-
rant and of his detention in custody.
3. The conviction under this section may be in form 13.
procedure against defaulting witness. 191
Warrant for Witness.
675. If the justice is satisfied by evidence on oath that any person
within the province, likely to give material evidence either for the prose-
cution or for the accused, will not attend to give evidence without being
compelled so to do, then, instead of issuing a summons, he may issue a
warrant in the first instance.
2. Such warrant may be in form 14, or to the like effect, and may be
executed anywhere within the jurisdiction of such justice, or, if necessary,
endorsed as provided in section six hundred and sixty-itwo and executed
anywhere in the province out of such jurisdiction.
676. If there is reason to believe that any person residing anywhere in
Canada out. of the province who is not within the province, is likely to give
material evidence either for the prosecution or for the accused, any Judge
of a superior Court or a County Court, on application therefor by the in-
formant or complainant, or the Attorney-General, or by the accused per-
son or his solicitor or some person authorized by the accused, may cause a
writ of subpoena to be issued under the seal of the Court of which he is
a Judge, requiring such person to appear before the justice before whom
the inquiry is being held or is intended to be held at a time and place
mentioned therein, to give evidence respecting the charge and to bring with
him any documents in his possession or under his control relating thereto.
2. Such subpoena shall be served personally upon the person to whom
it is directed, and an aflidavit of such service by a person effecting the same
purporting to be made before a justice, shall be sufficient proof thereof.
As to enforcing the execution of process, sec. 608 of the Code
provides as follows: —
608. Every Judge of the Sessions of the Peace, chairman of the Court
of General Sessions of the Peace, recorder, police magistrate, district mag-
istrate or stipendiary magistrate, whenever any resistance is offered to the
execution of any summons, warrant of execution or other process issued
by him. may enforce the due execution of the same by the means provided
by the law for enforcing the execution of the process of other Courts in like
cases.
A magistrate has no right to issue a warrant for the appre-
hension of a person to attend to find bail for his appearance as
a witness at the assizes, although it is sworn that the witness is
material, and had refused to ohey a summons which previously
had been issued, to give evidence before the magistrate. Evans v.
Rees, 12 A. & E. 55. Such a case as the above now comes within
the provisions of sec. 973 of the Code.
Warrant for Defaulting Witness.
677. If the person served with a subpoena as provided by the last pre-
ceding section, does not appear at the time and place specified therein, and
no just excuse is offered for his non-appearance, the justice holding the in-
quiry, after proof upon oath that the subpoena has been served, may issue
a warrant under his hand directed to any constable or peace officer in the
district, county or place where such person is, or to all constables or peace
officers in such district, county or place, directing him. them or any of
them to arrest such person and bring him before the said justice or any
other justice at a time and place mentioned in such warrant in order to
testify as aforesaid.
192 TAKING EVIDENCE ON COMMISSION.
2. The warrant may be in form 15, or to the like effect; and, if neces-
sary, may be endorsed in the manner provided by section six hundred and
sixty-two and executed in a district, county or place other than the one
therein mentioned.
From a consideration of these sections of the Oode, it will be
seen that no matter where a person resides^, or happens to be, in
Canada, if there is reason to believe, and it is established upon
oath, that such person is likely to give material evidence, eitlier
for the Crown or for the accused, such person can be brought be-
fore a justice holding a preliminary inquiry respecting an in-
dictable offence, no matter where such inquiry is being held.
Where a witness is subpoenaed to give evidence in a criminal
case, where the charge is for an indictable offence, he must attend
without pre-payment of his expenses or witness fees. R. v. Cooke,
1 0. & P. 322.
As a general rule, the Department of the Attorney-General in
each province provides the necessary money required for securing
the attendance of witnesses for the prosecution upon criminal
trials.
Not only are the Crown and the defence entitled to the pre-
sence of material witnesses who reside or are living in any part
of Canada, but also if such persons reside out of Canada, their
evidence either for the Crown or the defence can be secured by
commission under the provisions of sec. 997, as follows: —
Evidence by Commission.
997. Whenever it is made to appear, at the instance of the Crown, or
of the prisoner or defendant, to the satisfaction, of the Judge of any Su-
perior Court, or the Judge of a County Court having criminal jurisdiction,
that any person who resides out of Canada is able to give, material infor-
mation relating to any indictable offence for which a prosecution is pending,
or relating to any person accused of such offence, such Judge may, by order
under his band, appoint a commissioner or commissioners to take the evi-
dence, upon oath, of such person.
2. Until otherwise provided by rules of Court, the practice and pro-
cedure in connection with the appointment of commissioners, under this
section, the taking of depositions by such commissioners, and the certifying
and return thereof, and the use of such depositions as evidence, shall be
as nearly as practicable the same as those which prevail in the respective
Courts in connection with like matters in civil causes.
3. The depositions taken by such commissioners may be used as evi-
dence at the trial.
4. Subject to such rules of Court or to the practice or procedure afore-
said, such depositions may, by the direction of the presiding Judge, be read
in evidence before the grand jury.
A commission to take evidence in a foreign country for use
upon a prosecution for an indictable offence may be ordered under
TAKING EVIDENCE ON COMMISSION. 193
sec. 683 (now 997) of the Code while the preliminary inquiry is
proceeding. And such evidence is admissible as well at the pre-
liminary inquiry as before the grand jury and the petit jury on
the trial of the accused. R. v. Yerrall, (1895) 6 C. C. C. 325.
" The time at which and the circumstances under which the
order may be applied for and obtained all tend to shew that the
evidence procured under it may be used at any stage of the in-
quiry at which evidence may be given, relating to the offence,
or to the prisoner accused of the offence." Armoue, C.J., p. 328.
TUd., and see E. v. Chetwynd, (1891) 23 K. S. R. 332, and Barsky
V. Serling, 19 C. C. 0. 468.
An order may be made under sec. 683 (now 997) for taking
in Canada, under commission, the evidence of material witnesses
who reside out of Canada, but are temporarily within the jurisdic-
tion of the Cburt, and about to return to their own country. B.
V. BasTcett, (1902) 6 C. C. C. 61.
Any evidence taken under commission may be objected to at
the trial on the ground of the irregularity of the Commissioner's
appointment. The application of the procedure in civil cases by
sub-sec. 2 of sec. 997 does not confer a like right of appeal as in
civil cases from the order appointing the Commissioners. E. v.
Johnson, (1892) 2 B. C. R. 87.
In a prosecution for libel, it was held that the defendant was
not bound to anticipate his plea to the indictment, and was en-
titled to all the time up to his arraignment to consider whether he
would plead justification. The evidence proposed- to be taken
abroad under commission being only as to that plea which had
only then been entered, the defendant could not have made the
application earlier. Commission ordered. E. v. Nicol, (1898)
5 0. C. C. 31.
Witnesses Refusing to be Examined.
678. Whenever any person appearing, either in obedience to a sum-
mons or subpoena, or by virtue of a warrant, or being present and being
verbally required by the justice to give evidence, refuses to be sworn, or,
having been sworn, refuses to answer such questions as are put to him,
or refuses or neglects to produce any documents which he is required to
produce, or refuses to sign his despositions, without in any sudh case offering
any just excuse for such refusal, such justice may adjourn the proceedings
for any period not exceeding eight clear days, and may in the meantime by
warrant in form 16, or to the like effect, commit the person so refusing to
gaol, unless he sooner consents to do what is required of him.
2. If such person, upon being brought up upon such adjourned hearing,
again refuses to do what is required of him, the justice, if he sees fit, may
c.c.p. — 13
194 REFUSAL OF WITNESSES TO GIVE EVIDENCE.
again adjourn the proceedings, and commit liim for the Tike period, and so
again from time to time until such person consents to do what is required
of him.
3. Nothing in this section shall prevent such justice from sending any
such case for trial, or otherwise disposing of the same in the meantime, ac-
cording to any other sufficient evidence taken by him.
As we have previously stated, the witness should be informed
as to the purpose for which he is required to give evidence.
A witness cannot be committed for refusing to answer unless
there is a person charged with an offence and unless he (the wit-
ness) ifl apprised of that fact and the nature of the charge. Crop-
per V. Horton, 4 D. & E. M. O. 42, 8 D. & E. 167.
To justify the commitment for refusing to answer a question,
the question put must be one upon which the party may be law-
fully compelled to answer, and, therefore, the commitment in such
a case should set forth the question and answers, if any, so that
the Court may be enabled to judge of their propriety. In Re
Eadland, 1 Dowl. & Dowl. 835.
Where a witness who was summoned by commission of a bank-
rupt, imder the 6 Geo. IV., ch. 16, sec. 35, was required by the
Commissionere to read certain entries in a ledger, and on his re-
fusal to do so was committed by them for refusing to answer a
question, it was held that the request to read was neither in form,
nor substance, a question, and that the commitment was illegal.
lsa4JLc V. Impey, 10 B. & C. 442.
A justice may commit a femme covert who was a material wit-
ness upon a charge of felony brought before him, and who refused
to appear at the Sessions to give evidence, or to find sureties for
her appearance. Bennet v. Watson, 3 M. & Sel. 1.
To justify a magistrate in commiting a witness under this sec-
tion (67i8), it must appear not only that the witness refused with-
out just excuse to answer, but that the question asked was in some
way relevant to the issue. R. v. Ayotte, (1905) 9 C. C. C. 133.
Facts relevant to the issue are facts which tend either directly
or indirectly to prove or disprove a fact in issue or some relevant
fact.
Thus, facts which constitute a link in the chain of proof, or
affect the credit of a witness, or the admissibility of a document,
are relevant. Phipson on Evidence, 5th ed., p. 40.
powers of justices on pkeliminaey inquiry. 195
Powers of Justices.
679. A justice holding a preliminary inquiry may in his discretion, —
(a) permit or refuse permission to the prosecutor, his counsel or at-
torney, to address him in support of the charge, either by way of
opening or summing up the case, or by way of reply upon any evi-
dence which may be produced by the person accused ;
(ft) receive further evidence on the part of the prosecutor after hearing
any evidence given on behalf of the accused;
(c) adjourn the hearing of the matter from time to time, and change
the place of hearing, if, from the absence of witnesses, the inability
of a witness who is ill to attend at the place where the justice usually
sits, or from any other reasonable cause, it appears desirable to do
so, and may remand the accused, if required, by warrant in form 17 :
Provided that no such remand shall be for more than eight clear
days, the day following that on which the remand is made being
counted as the first day ;
(d) order that no person other than the prosecutor and accused,
their counsel and solicitors, shall have access to or remain in the
room or building in which the inquiry is held, if it appears to him
that the ends of justice will be best answered by so doing;
(e) regulate the course of the inquiry in any way which may appear
to him desirable, and which is not inconsistent with the provisions of
this Act.
2. If any remand under this section is for a time not exceeding three
clear days the justice may verbally order the constable or other person in
whose custody the accused then is, or any other constable or person named
by the justice in that behalf, to keep the accused person in his custody and
to bring him before him or such other justice as shall then be acting at the
time appointed for continuing the examination.
If the accused consents to a remand for more than eight days,
he thereby waives the irregularity. Re Burns' Bail, 17 C. C. C.
292.
When the hearing of a criminal charge had been adjourned for
a long period to await the result of a civil action for libel between
the accused and other persons, a mandamus to the magistrate to
proceed was granted. E. v. Evans, 62 L. T. 570,
The remand, if for more than three clear days, must be by war-
rant, and the accused must be present in Court when such remand
takes place. B. v. Sarault, (1905) 9 C. C. C. 448; B. v. Ealley,
4 C. C. C. 510; B. v. Goulet, 20 C. 0. C. 191.
A remand for medical examination as to the insanity of the
accused cannot be made in the absence of the accused; he or she
must be present within the hearing and view of the Aiagistrate.
B. V. Sarault, supra.
But, if the accused is brought before the magistrate and re-
manded with a view to his being examined as to his sanity, he may
be again remanded after eight days to await the report of the
physicians, although not then brought before the magistrate. B.
V. Bouchard, 20 C. C. C. 95.
196 INQUIRY COMPLETED BY SAME JUSTICE.
Where evidence on a preliminary inquiry is commenced before
one justice of the peace and he is joined by another justice of the
peace, and the hearing is continued and concluded before the two,
a committal by the two is irregular because they did not jointly
hear all the evidence. Be Nunn, (1899) 2 C. C. C. 429.
" It is contrary to all my ideas and experiences of justice for
depositions taken before one magistrate to be considered by an-
other magistrate sufficient evidence to commit a prisoner upon,
without having seen the demeanour of the witnesses when they
were giving their evidence, and so' being in a position to judge for
himself of the truth of their statements, ... I think the pro-
ceedings ought to be conducted throughout by the same magistrate
who has heard the witnesses and observed their demeanour. The
principle of the common law is clear upon the matter/' Willis,
J., in Re Guenn, (1888) 16 Cox 596.
The words "for continuing the examination" at the end of
sec. 679 have puzzled the author as well as others who have had
to deal with matters coming within the province of this section.
The puzzle is why these words are there in conjunction with
the preceding words " such other justice as shall then be acting at
the time appointed."
It coidd never have been contemplated that " continuing the
examination" meant that an examination already commenced be-
fore one justice could be continued before another, since, to
paraphrase what is so well expressed by Mr. Justice Willis in
the above quotation, " such a mode of procedure would be contrary
to one's ideas and experiences of justice."
Then what do the words mean ? They appear in the Imperial
Act, 11 & 12 Vic, ch. 42, and were incorporated in the Canadian
Staitute, 32-33 Vic, ch. 30, sec. 42, and appear in the same way in
the Criminal Procedure Act, ch. 174, Eevised Statutes of Canada
(1887), sec. 65.
One cannot find any express decision bearing upon the question
as to whether an inquiry can be commenced before one justice and
continued' and ended before another except the cases cited. The
reason presumably is that no one, except through gross ignorance,
would think of such a proceeding, and the question has thus never
arisen. There should be no doubt or question about it. Surely
the law never contemplated such a course of action being pursued.
What really is meant seems to be, that if the justice who began the
inquiry, or examination, has not actually taken any evidence, or
INQUIRY COMPLETED BY SAME JUSTICE, 197
is "unable to attend through illness or absence, or has died in the
meantime, then the hearing will not lapse in consequence of sncQ
event, but the same may be continued by another justice.
Not that this second justice should start where the first justice
left off, but that he will continue the examination by commencing
de novo, and proceeding as if the first examination had never been
held.
In the happening of such an event as that a preliminary hear-
ing will have to be continued by another justice, owing to the
absence of the justice who began the hearing, the depositions taken
before the first justice should be preserved intact and not de-
stroyed. Since, in the event of a witness who has been examined
before the first justice dying or leaving Canada prior to the con-
tinuance of the examination before the second justice, and it being
impossible to take his or her evidence over again, such depositions,
if taken in conformity with the provisions of the Code, would be
available for use at the trial under the provisions of sec. 999.
When an information for an indictable offence is laid before a
magistrate, he becomes seized of the case and no other magistrate
has any right to intervene and preside at the preliminary inquiry,
even with the consent of the first magistrate, except in case of
his illness or absence as provided by statute, although he may
invite another or others to sit with him, and sub.-sec, 3 of sec. 708
of the Code applies only to summary conviction proceedings under
Part XV. of the Code. Re Holman and Rea (No. 3), 21 C. C. C.
11, reversing Re Holman and Rea (No. 1), 21 C. C. C. 7, and fol-
lowing R. V. McRae, 28 0. E. 569.
Justice's Decision.
The justice should take and complete the examination of all
concerned and discharge or commit the accused for trial as soon
as the nature of the case will permit him, but he is in all cases
allowed a reasonable time for this purpose before he makes his
final decision. See Re Ying Foy, (1909) 15 C. C. C. 14.
The time of the detainer must be no longer than is necessary
for such purpose, and the magistrate ought not arbitrarily to
commit the party. Davis v. Capper, 10 B. & C. 28.
If the examinations do not take place in proper time an action
Avill lie against the justice, and the commitment would be void ab
initio. Arbuckle v. Taylor, 3 Dow's Rep. at p. 184.
198 DECISION OF JUSTICE AT CLOSE OF INQUIEY.
In Davis v. Capper, supra, it was fully settled that trespass
will lie against a magistrate for committing a party charged with
felony for re-examination for an unreasonable time, though with-
out any improper motive.
A warrant for commitment on remand for an unreasonable
time, i.e., beyond eight clear days (the day following that on which
the remand is made being counted as the first day) is wholly void.
" A commitment for further examination is not a proceeding
against the party, but a proceeding for his benefit. It is a pro-
ceeding with a view to protect him against a commitment for trial,
if, during a reasonable time for examination, it can be found there
is no ground upon which there ought to be a commitment for cus-
tody in order to trial. And if you were to say that, where a party
is committed for further examination, bail shall be required before
that further examination takes place, you put him to this incon-
venience that he must give security to stand a trial which he may
never have to stand." Per Lord Eldon, in ArbucMe v. Taylor, 3
Dow's Eep. 160, at pp. 183, 184.
Where a complaint of a criminal nature is made before jus-
tices, which the evidence shews to be one they have no jurisdiction
to determine summarily, they should either dismiss the complaint
or commit the person charged for trial, and not convict him of a
minor offence included in the offence shewn. In Re Thompson,
30 L. J. M. O. 19, and see R. v. Mines, 1 C. C. O. 217 ; R. v. Dun-
gey, 5 C. C. 0. 3S; Ex parte Duffy, 8 C. C. C. 277.
The examination may take place either in public or private,
and the justices may, if necessary, exclude all persons!
It has been held in England that a justice may exclude an
attorney, or counsel, if he likes. Cox v. Coleridge, 1 B. & C. 37;
Collier v. HicJcs, 2 B. & Ad. 663.
The magistrate has not the same right of excluding the public
from the Court room when he is dealing with a summary con-
viction matter. Davbney v. Cooper, 10 B. & C. 277.
But the magistrate cannot exclude the accused, or refuse to
allow his counsel to cross-examine the witnesses. R. v. Commins,
4 D. & E. M. C. 94; 8 D. & R. 344; R. v. Griffiths, 16 C3ox 46.
A justice should not exclude the counsel for the accused unless
for misconduct, or contempt of Court. It should never be done if
it can be avoided, and if done a memorandum of such fact should
be set out on the face of the proceedings, and reasons given for
EXCLUSION OF PERSONS FROM COURT — PRIVATE PROSECUTORS. 199
such exclusion. Because it is one of the conditions precedent to
the use at the trial of depositions taken in a preliminary inquiry
"that such deposition was taken in the presence of the person
accused, and that he, or his counsel or solicitor, if present, had
a full opportunity of cross-examining the witness " ; some question
might arise if counsel was wrongfully excluded as to the admissi-
bility of a deposition taken in counsel's involuntary absence.
The accused himself has, of course, the right to cross-examine
the witness, but, if he has engaged counsel and the latter is ex-
cluded for no good reason, it might be argued that the accused
or his counsel had not "a full opportunity of cross-examining
the witness."
The section under consideration, 679 (d), specifically provides
that the justice may in his discretion " order that no person, other
than the prosecutor and accused, their counsel and solicitors, shall
have access to or remain in the room or building in which the in-
quiry is held, &c." As to excluding the public from trial Courts,
see sec. 645 of the Code.
A private prosecutor is no party to a criminal prosecution, and
cannot insist that he or his counsel shall aid in the conduct of the
same when the proper Crown oflBcer has undertaken the prosecu-
tion and refuses assistance from other counsel. R. v. Gilmore,
(1903) 7 C. 0. C. 219.
" But though it is the right of everyone to make a complaint,
with a view to the institution of criminal proceedings, and also
under certain circumstances to prefer a bill of indictment, yet the
prosecutor is no party to the prosecution, nor indeed bound by any
judgment that may be made in it. He may with the consent of
the proper authorities proceed in the name of the Sovereign ; but
against the will of both parties he has no power over or voice in
the proceedings." Meredith, J., Ibid.
But when the prosecution was instituted by a private prose-
cutor and he is still in charge of it, he has the same right to be
heard on the trial, both as to the question of guilt and the ques-
tion of punishment, as the Attorney-General would have on a
Crown prosecution. R. v. McMicJcen, 20 C. C. C. 334.
Bail on Eemand.
680. The justice may order the accused person to be brought before
him, or before any other justice for the same territorial division, at any
time before the expiration of the time for which such person has been re-
manded, and the gaoler or officer in whose custody he then ,is shall duly
obey such order.
200 ADMITTING TO BAIL ON REMAND.
681. If the accused is remanded as aforesaid, the justice may dis-
charge him, upon his entering into a recognizance in form 18, with or
without sureties, in the discretion of the justice, conditioned for his ap-
pearance at the time and place appointed for the continuance of the ex-
amination.
These elements are to be taken into consideration by the jus-
tice in determining whether the prisoner should be admitted to
bail or not, viz., the gravity of the crime, the weight of the evi-
dence, and the severity of the punishment, with regard to the
probability of his appearance to take his trial. Be Robinson, 23
L. J. Q. B. 286 ; Re Barronet, 1 E. & B. 1 ; B. v. Scaife, 9 Dowl.
553.
Accomplices should never be allowed to go on bail because they
are so likely to abscond, notwithstanding that it is intended they
should give evidence for the prosecution. R. v. Beardmore, 7 C. &
P. 497.
At the expiration of a remand by warrant for eight clear days,
a further remand for another eight days and so on may be made.
A remand for an unreasonable time would be void. Connors v.
Darling, 23 U. C. E., at pp. 547, 551.
Such further remand should be evidenced in writing under the
hand of the justice by endorsement on the back of the warrant, of
commitment.
Where a person is given into ' custody without a warrant on a
charge of an indictable offence and is afterwards brought before a
magistrate, he may remand the accused without taking any evi-
dence upon oath. R. v. Waters, 12 Cox 390.
If a prisoner who is remanded is taken by the constable to a
lockup, instead of to the gaol, without any express direction by the
magistrate to take him to the lockup, the magistrate is not respon-
sible for the prisoner's sufferings from cold, &c., in the lockup.
Cnmford v. Beattie, 39 U. C. E. 13.
A warrant of remand was signed with the addition of the
letters " J.P." after the signature, and contained a reference in
the body of it to the signer, or " some other justice " for the county.
Held, the warrant was good. Ex parte Hilchie, (1906) 11 C. C.
C. 85.
Evidence for Prosecution on Oath.
682. When the accused is before a justice holding an inquiry, such
justice shall take the eriience of the witnesses called on the part of the
prosecution.
ADMINISTERING OATHS TO WITNESSES. ' 201
2. The evidence of the said witnesses shall be given upon oath and in
the presence of the accused ; and the accused, his counsel or solicitor, shall
be entitled to cross-examine them,
3. The evidence of each witness shall be taken down in writing in the
form of a deposition, which may be in form 19, or to the like effect.
4. Such deposition shall in the presence of the accused, and of the jus-
tice, at some time before the accused is called on for his defence, be read
over to and signed by the witness and the justice.
5. .The signature of the justice may either be at the end of the depo-
sition of each witness, or at the end of several or of all the depositions in
such a form as to shew that the signature is meant to authenticate each
separate deposition.
Administeeing Oaths.
By sec. 13 of " The Canada Evidence Act," it is provided that
" Every Court and Judge and every person having by law, or
consent of parties, authority to hear and receive evidence, shall
have power to administer an oath to every witness who is legally
called to give evidence before that Court, Judge or person."
The usual proceeding in administering the oath is for the
witness to hold the New Testament, or Bible, in his right hand,
which should be bare and ungloved. And the witness should be
addressed as follows ; " The evidence that you will give to the Court
touching the matters in question shall be the truth, the whole
truth, and nothing but the truth, So help you, God," or another
form, which is often used, is as follows : " You swear that you shall
true answer make to all such questions as may be demanded of
you^ — So help you, God."
The witness then kisses the book. If the witness is a Jew, he
should be sworn with his hat on, and upon the Pentateuch.
The nationality and religious belief of the witness should be
ascertained before he is sworn.
If a witness has without objection been sworn in the usual
form, no subsequent objection can be taken to his testimony on
the ground that, being of a different faith, the oath is not in a
form affecting his conscience. Sells v. Hoare, 3 Brod. & Bing.
232, or that some other form is more binding. The Queen's Case,
2 Brod. & Bing. 284. Mohammedans are sworn on the Koran.
The witness places his right hand flat upon the book and putting
his left upon his forehead, brings his head down to the book; the
magistrate, or clerk, whichever administers the oath, then asks
him if he is bound by this ceremony to speak the truth, and the
• witness replies that he is. Phipson, 5th ed. J^S9.
Chinese are sometimes sworn by the ceremony of breaking a
saucer in the witness box. The person administering the oath
203 ADMINISTEKING OATHS TO WITNESSES.
then says : " You shall tell the truth and the whole truth ; the
saucer is cracked, and if you do not tell the truth, your soul will be
cracked like the saucer." R. v. Entrehman, Car. & M. 248,
Another form is for the witness to write several characters
upon paper, which he burns, praying that his soul may be simi-
larly burnt if he swears falsely, while the most binding oath is
said to consist in the witness cutting off a cock's head with a like
invocation. Phipson, 5th ed., Ji-SQ, .440.
Held, that a Oanton Chinaman, who is not a Christian, should
have the " chicken oath " administered to him, instead of the paper
oath. R, V. Ah Wooey, (1902) 8 C. C. C. 25.
For the form of such oath and mode of administering the same
vide this case.
The oath as administered to white people can also be adminis-
tered to Chinamen who profess Christianity, or say that it is bind-
ing on their conscience, and it was held, in R. v, Lee Tuck, 19 C.
C. C. 471, that, when a Chinese witness stated that he was a
Christian and asked to be sworn on the Bible, it was illegal to
administer the burning paper oath instead, and he could not be
convicted of perjury in respect of his evidence thus given.
" It seems to me that when a man without objection takes the
oath in the form ordinarily administered to persons of his race or
belief, as the case may be, he is then under a legal obligation to
speak the truth, and cannot be heard to say that he was not sworn."
Hunter, C.J., at p. 471, in R. v. Lai Ping, (1904) & C. C. C. 467.
The administration of the Chinese paper oath to a Chinaman
at his own suggestion is binding upon him to tell the truth, other-
wise he lays himself open to penalty for perjury. Ibid.
Euthenians, Buckowinians, Koumanians, Poles and Russians,
either Greek, or Roman Catholic, are sworn upon the crucifix.
Two candlesticks with candles in them are placed in front of
the witness and between the candles is placed the crucifix. The
candles are lighted, the witness holds up the thumb and first two
fingers of his right hand and the following oath is then adminis-
tered: '*You swear by God Almighty, Father, Son and Holy
Ghost, and by the Virgin Mary and all that is Holy, that the evi-
dence you will give to the Court shall be the truth, the whole truth
and nothing but the truth, so help you God," The witness repeats*
the oath as it is administered word by word, an"d at its conclusion
kisses the crucifix. This is the mode and manner in which the
SOLEMN AFFIRMATION INSTEAD OF OATH. 203
oath is administered in all parts of Austria and Eussian Poland,
and is used in all criminal Courts in Winnipeg.
Affirmation.
By sec, 14 of the Canada Evidence Act : —
14. If a person called or desiring to give evidence, objects, on grounds
of conscientious scruples, to take an oath, or is objected to as incompetent
to take an oath, such person may make the following affirmation :
" I solemnly affirm that the evidence to be given by me shall be the
truth, the whole truth, and nothing but the truth."
2. Upon the person making such solemn affirmation, his evidence shall
br- taken and have the same effect as if taken under oath.
A proper foundation must be laid to permit a witness to
aflSrm under this section, instead of taking the usual oath. It is
not sufficient that he should merely object to be sworn or express
a preference to affirm, but he must state that he objects to take an
oath on grounds of conscientious scruples. B. v. Deahin, 19 C.
C. C. 62.
But it was held by the Supreme Court of Canada, in Curry v.
R., 22 C. C. O. 191, 48 S. C. R. 532, that a witness might pro-
perly be convicted of perjury, although, without being asked if
he had any objection to being sworn in the usual manner, but
without objecting to the form used, he was directed to take the
oath by raising his right hand instead of kissing the Bible.
Any witness whose evidence is admitted under this section
shall be liable to indictment and punishment for perjury in all
respects as if he had been sworn. Sec. 15 (2). Witnesses who
affirm do so with the right hand uplifted.
The oath is usually administered in Scotland by the witness
(who like all witnesses stands when the oath is being administered)
holding up' his right hand and repeating after the person ad-
ministering the oath, no book being used, " I swear by Almighty
God that I will speak the truth, the whole truth and nothing but
the truth."
Witnesses who Need not be Sworn.
By sec. 16 of the Canada Evidence Act.
16. Where a child of tender years is offered as a witness and such
child does not, in the opinion of the Judge, justice, or other presiding
officer, understand the nature of an oath, the evidence of such child may
be given, if in the opinion of the Judge, justice or other presiding officer,
as the case may be, such child is possessed of sufficient intelligence to
204 COREOBOBATION OF EVIDENCE OF CHILDREN,
justify the reception of the evidence and understands the duty of speaking
the truth.
2. No case shall be decided upon such evidence alone, and such evidence
must be corroborated by some other material evidence.
See also sec. 1003 of the Code, which is to very nearly the
same effect.
COREOBOEATION.
" Some independent material evidence must be given which
corroborates, in plain Anglo-Saxon, strengthens, the evidence of
the opposite or interested party. If the evidence offered is ad-
missible, if it supports the evidence of the party, it is corrobora-
tive evidence, and it is then for the Judge, or jury, to say what
weight is to be attached to it. I^ot is corroboration required to
be directed to any particular fact or part of the evidence, it is the
' evidence ' of the party which is to be corroborated by some
* other material evidence.' " Osler^ J. A., at p. 170, in Radford v.
MacDormld, (1891) 18 A. E. 167. See Parher v. Parker, 32 C.
P. 113.
Where the evidence of a cTiird is given without oath under
above section 16, and evidence is given for the defence, the latter
may be looked at for the corroboration of the child's evidence re-
quired byi that section : R. v. Iman Din, 18 C. C. O. 82. See also
R. V. McGivney, 22 C. C. 0. 222, and R. v. McInuUy, lb. 347, in
which it was held, following R. v. Whistnant, 20 0. C. C. 322,
that similar unsworn testimony of another child cannot be the
corroboration required by the statute.
In R. V. De Wolfe, 9 C. 0. C. 78, Wallace, Co. J., held that in
cases in which section 1003 of the Code applies, a stronger degree
of corroboration is called for than is required by the above sec-
tion 16 of the Evidence Act.
As to corroboration being necessary in certain cases before
conviction can be secured, see sec. 1002 of the Code.
'^A mere scintilla is not sufficient. At the same time the
corroborating evidence need not be sufficient in itself to establish
the case. The direct testimonv of a second witness is unnecessary^
the corroboration may be afforded by circumstances." Killam,
J., in Thompson v. Coulter, (1903) 34 S. C. R. 261.
~ Facts which tend to render more probable the truth of a wit-
ness's testimony on any material point, are admiissible in corro-
boration thereof, although otherwise irrelevant to the issue, and
EVIDENCE OF ACCOMPLICES AND DEAF MUTES. 205
although happening before the date of the fact to be corroborated.
Wilcox V. Gotfrey, 26 L. T. N. S. 481.
But facts which are not more consistent with the truth of such
testimony than the reverse are inadmissible. The corroborative
facts and evidence must, however, be proved otherwise than by
the testimony of the witness to be corroborated. Owen v. Mober-
ley, 64 J. P. 8i8. And the question of the admissibility is one of
law for the Judge and not one of fact for the jury. Bessela v.
Sterm, 2 C. P. D., at p. 267.
Evidence of Accomplices.
The (practice is to warn the jury that they ought not to con-
vict upon the evidence of an acoomplice unless they think that Tt
has been corroborated, but the case cannot be withdrawn from the
Jury tor want oi" such corroboration and on a trial by a Judge or
magistrate without a jury a conviction upon the evidence oi an
accomplice will not be set aside lor want of corroboration. R. v.
Franh] id 0. C. LI '^'67. See also i?. v. St Pierre, 19 O. C C.
82; it!. Y. Betchell, ii) (J. (J. 0. 428. ~'~"
• — ^
Deaf Mutes.
By sec. 6 of the' Canada Evidence Act a witness who is unable
to speak may give his evidence in any other manner in which he
can make it intelligible.
The evidence of a deaf mute may be,given either by signs made
with the fingers through an interpreter, or by writing; the latter
is the better faode where the witness can write, as he can then
write the answers to the questions put to him. See Morrison v.
Lennard, 3 C. & P. 127, per Best, O.J.
The oath can be administered to these witnesses in the same
way.
Other Witnesses.
At common law, before the enactment of the Oaths Act, 1888,
(Imp.), the law was that a man who had no religion whatever, or no
religion that could bind his conscience to speak the truth, was ex-
cluded from being a witness. Omichund v. Barker, Willes' Rep.
at p. 549; Madan v. Oatarrach, 7 H. & N. 360.
It was not indeed essential that a Avitness shall be a Christian
or believe in the Old Testament; it was sufficient if he believed
206 EXCLUSION OF WITNESSES — WHO ARE COMPETENT.
in a God, and that divine punishment would be the certain conse-
quence of perjury; and it seems iimmaterial whether the witness
believed that the punishment would be inflicted in this world or the
next. Taylor Ev., sec. 1252. Defect of religious belief is never
presumed, it must be proved by the party objecting. Hid.
Mohammedans, Turks and Moors may be witnesses.
But now, as the above quoted section (14) of the Canada Evi-
dence Act, if a witness objects on grounds of conscientious scruples
to take an oath, or is objected to as incompetent to take an oath,
his evidence will be taken upon making the solemn affirmation
provided for in the section.
Exclusion op Witnesses.
Before the examination commences the Crown may demand
that the witnesses should retire in order that each may be ques-
tioned in the absence of the others.
And the same order will be made on the request of the accused,
but as a matter of indulgence and not of right. R. v. Yaughan,
Holt 689. See B. v. Murphy, 8 C. & P. 297, and Southey v. Nash,
7 C. & P. 632.
It is not usual to exclude witnesses who are merely to prove
matters of form, medical witnesses or witnesses as to character.
Competent Witnesses.
As witnesses must give their evidence in the presence of the
accused he must be present in Court. A person shall not be in-
competent to give evidence by reason of interest or crime. Sec.
3, Can. Ev. Act.
Every person charged with an offence and, except as in the sec-
tion otherwise proviided, the wife or husband, as the case may be,
of the person so charged, shall be a competent witness for the de-
fence and whether the person is charged solely or jointly with any
other person. Sec. 4 of Can. Ev. Act.
And the wife and husband are both competent and compellable
witnesses for the prosecution without the consent of the person
charged in offences against sections 202 to 206 inclusive; 211 to
219 inclusive; 238, 239, 244, 245, 298 to 302 inclusive; 307 to
311 inclusive; 313 to 316 inclusive, of the Oode. Ibid.
Disclosures of oommunications between husband and wife
during marriage are not compellable. Ibid.
CRIMINATING ANSWERS — EVIDENCE FOR PROSECUTION. 207
No witness shall be excused from answering any question on
the ground that the answer may tend to criminate him. If the
witness objects to answer any question on the ground that his
answer may tend to criminate him, his answer shall not be used
against him in any criminal trial or proceeding against him, other
than perjury in the giving of such evidence. Sec. 5, Can. Ev. Act.
Not more than five expert witnesses may be called on either
side wiithout the leave of the Court. Sec. 7. Ihid.
For further information as to evidence see chapter on Canada
Evidence Act, post.
Evidence for Prosecution.
In taking evidence for the prosecution in an inquiry several
things have to be borne in mind as being requiired by the section
of the Code (682) now under consideration.
(1) The evidence must be given upon oath; any one who
objects to take an oath, or is incompetent to do so, may aflBrm.
And children need not be sworn unless in the opinion of the
justice the chiid understands the nature of an oath.
(2) Such evidence must be given in the presence of the
accused, and the accused, or, if he has a counsel or solicitor, the
latter, shall be entitled to cross-examine him. As has been pointed
out, this is a right which cannot and must not be denied to the
accused. See R. v. Eliasoph, 16 C. C. C. 131.
(3) The evidence of each witness shall be taken down in
writing in the form of a deposition which may be in Form 19, or
to the like effect.
There must be a proper caption or heading to the deposition;
a deposition without a caption will not be received. R. v. Newton,
1 F. & F. 641. But one caption will be enough for the deposi-
tions of any number of witnesses in the same case taken at the
hearing, provided the sheets of paper upon which the depositions
have been taken are fastened or annexed together so as to form a
connected whole. R. v. Johnson, 2 C. & K. 354; R. v. Parker,
L. E. 1 C. 0. 225, and see R. v. Hamilton, (1898) 2 C. C. C. 390,
12 M. R. 354.
To avoid all difficulty the justice should follow Form 19 faith-
fully.
It is necessary in the caption to state the charge against the
accused. In R. v. Newton, supra, it did not appear upon the
208 MANNEfi OF TAKING DOWN EVIDENCE.
caption that "the prisoner was charged with an indictable offence,
and it was held that this defect could not be cured by parol evi-
dence, and a deposition with such a defect is not admissible evi-
dence upon proof of deponent's death.
As much of the examination as is material must be put down,
what the accused says, and the statements made by the witnesses
should be put down in their very words and not in any law tech-
nicalities, or words not made use of by them. MUls v. Collett, 6
Bing, 85; Cohen v. Morgan, 6 D. & R. 8; J5. v. Roche, Car &
Marsh 341.
The deposition should be taken in the first person thus, " I
saw, etc., at such a time and place," instead of saying, "he this
examinant" or "he this deponent," terms which many witnesses
do not understand, and perhaps which may be conceived to mean
some other person. 5 Burns' Justice, p. 403.
The deposition should contain the full evidence, cross-examin-
ation and re-examination (if any) as well as the examination in
chief. Any interruption by the accused should be taken down
and may be evidence against him. R. v. Stripp, Dears 648, 7 Cox
97.
If the accused, or his counsel, state that they do not wish to
cross-examine, this fact should be noted in the deposition.
That which is clearly irrelevant, or not admissible as evidence,
ought not to be admitted.
Tf f.hp jnff|:iV^ has any doubt as to the admissibility he should
take down the question and answer and note that the same is
objected to. It will then be left for the higher tribunal to decide
the question of admissibility.
The depositions should contain all the material statements
given in evidence by the witnesses. R. v. Grady, 7 C. & P. 650,
and R. v. Thomas, Ihid. p. 817.
See R r. ProsilosH (No. 2), 16 C. C. C. 139, shewing that
oral evidence may be given of statements sworn to by the accused
though omitted from the depositions.
(4) The depositions must be read over to and signed by the
witnesses and the justice, both of which acts must be performed
in the presence of the justice and the accused.
As to this requirement, see R. v. Robert, 17 0. C. 0. 194, and
R. V. Woodroff, 20 0. C. C. 17, in which last case it was held that
the requirement is directory only and does not affect the jurisdic-
tion.
MANNER OF TAKING DOWN EVIDENCE. 209
This proceeding of course, is not necessary, where the evidence
is taken in shorthand by a sworn stenographer, under the provi-
sions of sec. 683 of the Code.
Evidence so taken need not be read over to or signed by the
witness; the transcript is required to be signed by the justice
accompanied by an affidavit of the stenographer that it is a true
report of the evidence.
(5) The witness is entitled to make any corrections before he
signs the deposition. This only applies to bona fide mistakes or
omissions, and should not be allowed so as to permit the witness
to change, or contrEidict, the statements he has already made.
The best plan is to add at the foot of the deposition any material
alteration, or addition, the witness desires to make. The omission
of witnesses to sign their depositions in summary conviction pro-
ceedings is not a matter affecting the jurisdiction of the magistrate
to make a conviction. Ex parte Doherty, (1894) 3 C. C. 0. 310,
and see R. v. Scott, 20 0. E. 646.
The signature of the justice may be either at the end of the
deposition of each witness, or at the end of all the depositions im
such form as to authenticate each separate deposition. This is
done by complying with the concluding paragraph of Form 19.
Although the witness is not required to sign the transcript of
the depositions taken in shorthand it is necessary that the justice
should do so.
Depositions to which the magistrate has affixed his signature,
although not at the foot or end thereof, are sufficiently signed
for the purposes of a " charge " under the Speedy Trials clauses.
E. V. Jodrey, (1905) 9 O. C. O. 477.
If any witness is unable to speak English his evidence can be
given through an interpreter. The interpreter should be first
sworn ; the oath can be as follows : " You swear that you will well
and truly interpret the evidence that shall be given by the wit-
ness or witnesses in this matter of The Kiny against Brown for
burglary (or as the case may be), so help you God.^*
It is not necessary that the interpreter shall be freshly sworn
upon the appearance of each witness. If he is once sworn to truly
interpret during the proceedings, that is sufficient.
The name of the interpreter and the fact of his being sworn
should be recorded on the face of the depositions.
c.c.p. — 14
210 taking evidence in shorthand.
Depositions in Shorthand.
683. Every justice holding a preliminary inquiry shall cause the de-
positions to be written in a legible hand and on one side only of each sheet
of paper on which they are written. Provided that the evidence upon such
inquiry or any part of the same may be taken in shorthand by a steno-
grapher who may be appointed by the justice and who before acting shall,
unless he is a duly sworn o£Scial court stenographer, make oath that he
shall truly and faithfully report the evidence.
2. Where evidence is so taken, it shall not be necessary that such evi-
dence be read over to or signed by the witness, but it shall be sufficient if
the transcript be signed by the justice and be accompanied by an affidavit
of the stenographer, or, if the stenographer is a duly sworn court steno-
grapher, by the stenographer's certificate, that it is a true report of the
evidence.
Unless the stenographer is a duly sworn Court stenographer
he niu'st first be sworn before he proceeds to take the evi'dence. The
form of oath may be as follows : ' You swear that you will truly
and faithfully report in shorthand and transcribe all the evidej^e
which may be given in this matter of The King against
charged with so help you God."
The fact of the stenographer being appointed and sworn, and
his name, should be recorded on the face of the depositions and
if he is a duly sworn Court stenographer it would be well to make
that appear in the depositions.
Affidavit of Stenographer.
Verifying transcript.
Province of \
County of
District of j
The King
against
Smithson for "Burglary."
I, A.B., of the of in the of
(occupation) make oath and say as follows:
1. That I am the stenographer appointed by (name of magis-
trate or J.P.), one of His Majesty's police magistrates or justices
of the peace in and for the to report the evidence
in this matter.
2. The evidence so reported and transcribed by me is set out
in the sheets of paper hereto annexed, and the same
BEADING OVEE DEPOSITIONS. 211
is a true and faithful transcript of the said evidence as taken by
me in shorthand in this matter.
Sworn, &c.
This affidavit and the signature of the transcript by the Jus-
tice need not be before the case for the defence is entered into.
R. V. Rouleau, 17 C. C. 0. 281.
Depositions to be Read Over — Statement of Accused,
684. After the examination of the witnesses produced on the part of
the prosecution has been completed, and after the depositions have been
signed as aforesaid, the justice unless he discharges the accused person,
shall ask him whether he wishes the depositions to be read again, and un-
less the accused dispenses therewith shall read or cause them to be read
again.
2. When the depositions have been again read, or the reading dispensed
with, the accused shall be addressed by the justice in these words, or to the
like effect :
" Having heard the evidence, do you wish to say anything in answer
to the charge ? You are not Ijouhd to say anything, . but whatever you do
say will be taken down in writing and may be given in evidence against
you at your trial. You must clearly understand that you have nothing to
hope for from any promise of favour and nothing to fear from any threat
which may have been held out to you to induce you to make any admission
or confession of guUt, but whatever you now say may be given in evidence
against you upon your trial notwithstanding such promise or threat."
3. Whatever the accused then says in answer thereto shall be taken
down in writing in form 20, or to the like effect, and shall be signed by
the justice and kept with the depositions of the witnesses and dealt with
as hereinafter provided.
The accused should not be put upon his oath at this stage of
the inquiry, and only when he volunteers to give evidence upon his
own behalf.
The omission of the justice to address the accused as directed
by sub-section 2 of section 684, after the depositions have been
read over, does not invalidate a commitment for trial. R. v.
Lmiz, 15 D. L. R. 651, 22 C. C. 0. 212.
The statement is not made under oath, and, if his statement as
taken down and signed by the magistrate concludes "taken and
eworn before me," it was, before prisoners were allowed to give
evidence iinder oath, not receivable in evidence, and the Judge
would neither allow the magistrate's clerk to prove that in fact it
was not sworn, nor receive parol evidence of what the prisoner
said. R. V. Rivers, 7 C. & P. 177 ; R. v. Smith, 1 Stark Eep. 242.
But now see R. v Shelton, post.
The prisoner's signature is not essentially necessary but only
for precaution and for the facility of future proof. Lamhe's Case,
2 Leach C. C. 625.
212 STATEMENT OF ACCUSED.
It is usual and quite proper for the magistrate to get the
prisoner's signature to the statement even if, as is usual, he only
'says '' I am not guilty," or " I have nothing to say/^
The signature of the accused to such statement may be after-
wards used against him upon the charge of forgery upon which
he was committed for the purpose of comparing the handwriting
with the alleged forgery. R. v. Golden, (1905) 10 C. C. C. 278.
An accused person by going into the witness box and giving
evidence in his own behalf, is not bound to write so as to proviclo
a specimen ol hiB handwriting for comparison with a document in
evidence. R. v. Grinder, (1905) 10 C. C. C. 335.
The provisions of this section are directory, and a statement
in writing not prefaced with the statutory words, made by a
prisoner to the commiting magistrate, was admitted in evidence,
upon evidence by the committing magistrate that he had verbally
cautioned the prisoner to the effect reqiuired by the statute before
receiving the statement in question. R. v. Kalaheen et ah, 1 B.
C. R., pt. 1, 1.
At a preliminary hearing the accused was addressed by the
justice in the words set out in sec. 684. He then made a state-
ment, but before making it he was, at his own request, sworn.
The statement was taken down in writing and signed by the
accused. Upon this statement being offered in evidence by the
Orown at the trial and upon its reception being objected to, the
trial Judge (Wetmoke, J.) admitted the statement, holding that
it was none the less a statement under sec. 591 (now 684) of the
Code, because the defendant at his own request had been sworn
before he made it, and if it was not a statement made under that
Bection the defendant was a competent witness under sec. 4 of the
Canada Evidence Act, and having offered his evidence under oath
and it having been received, it was not subject to the proviso in
sec. 5 of the Canada Evidence Act. It was admissible under the
general provisions of the Evidence Act and by virtue of sec. o9'l
(now 685) of the Code. R. v. Slcelton, (1898) 4 C. C. C. 467,
and see R. v. Sonde, 1 P. & B. 17 N. B. R. 611.
This decision is not an authority for the statement being taken
ugder oath even li tne accused desires to be sworn. His reply in
answer to tiie question, or any statement he chooses to make,
should be taken tlown in writing and signed. He can be told that
ii ne desiTes to give eviaence under oath he can do so later on
as provided by sec. 686.
STATEMENT OF ACCUSED. 313
If the statement be headed according to the section it is evi-
dence against the accused on its mere production and without
proof of the mode in which it was taken, unless indeed it can be
shewn that the signature of the justice is forged. R. v. Sansome,
4 Cox 203. A statement has been admitted which was not signed
by either the justice or the accused. R. v. Bond, 4 Cox 231.
If the statement is not headed in the prescribed form, or irf it
contains erasures or interlineations, it will probably be necessary
to call the justice or his clerk tO' explain the conditions under
which it was taken. Taylor on Evidence, 892.
As any statement voluntarily made by the accused is at com-
mon law admissible against him, the only advantage conferred by
the statute is to simplify the proof of the confession and to
render it of more weight. And where the examination is from
some informality inadmissible under the statute, or where it has
not been reduced to writing, the statement, if voluntarily made,
or acknowledged, by the prisoner may still be proved as a confes-
sion at common law. Roscoe Cr. Evidence, 51-54; R. v. Taylor,
13 Cox 77-8; R. v. Erdheim, [1896] 2 Q. B. 260; Phipson, 5th
ed., 457.
The taking of the statutory examination will not exclude proof
of any admission made by the accused before, or after, the ex-
amination, or of anything incidentally said by him during it, and
before being cautioned. R. v. WilTcinson, 8 C. & P. 662; R. v.
Harris, 1 Moody C. C. 338; R. v. Stripp, 7 Cox 97, Dears. 648.
Statements made by the accused before the justice on a former
investigation, but not incorporated in the examination returned,
are also admissible. Ihid. As has been previously stated, de-
positions taken on a preliminary inquiry may be read as evidence
at the trial of the accused in certain events, e.g., when the witness
is dead, or so ill as not to be able to travel, or is absent from
Canada, under the provisions of sec. 999 of the Code.
This makes it all the more imperative that justices should be
impressed with the importance and necessity of seeing that all the
requirements of the Code relating to preliminary inquiries are
carried out to the letter ; the evidence must be properly taken, and
thus preserved it can be used at the trial if any of the contingen-
cies arise as provided for in sec. 999.
The caution in sec. 684 is applicable to the accused only and
not to any witnesses, so that a deposition of any witness, regularly
214 CONFESSIONS AND ADMISSIONS BY ACCUSED.
taken, may be used against him afterwards without any caution
having been given, if he should be accused of crime. R. v. Coote,
L. B. 4 P. 0. App. 599.
By sec. 1001 of the Code, the statement made by the accused
person before the justice may, if necessary, upon the trial of such
person, be given in evidence against him without further proof
thereof, unless it is proved that the justice purporting to have
signed the same did not in fact sign the same.
Confessions and Admissions,
685. Nothing herein contained shall prevent any prosecutor from
giving in evidence any admission or confession, or other statement, made
at any time by the person accused or charged, which by law would be ad-
missible as evidence against him.
In criminal cases, a confession made by the accused voluntarily
is evidence against him of the facts stated. But a confession
made after suspicion has attached to, or a charge been preferred
against, him, and which has been induced by any promise or threat
relating to the charge and made by, or with the sanction of, a
person in authority, is deemed not to he voluntary, and is inadmis-
sible. Phipson, 5th ed., p. 248.
Statements made by the accused before the crime, e.g., as to
his motives and intentions, or the instruments obtained to commit
it, are receivable against him as admissions irrespective of the
above limitations. E. v. Cros&fleld, 26 How. St. Tr. 314-5;
Wigmore, s. 1050.
The ground of rejection of confessions which are not voluntary
is the danger that the prisoner may be induced by hope, or fear,
to criminate himself falsely. Taylor, s. 874; 3 Russ. Cr. 479.
It is now settled that it lies upon the prosecution to establish,
and not upon the accused to negative, the voluntariness of the
confession, it being the duty of the prosecution to satisfy itself on
the point before putting the statement in. R. v. Thompson,
[1893] 2 Q. B. 12; R. v. Rose, 18 Cox 717.
■ A confession duly made and satisfactorily proved is generally
Y sufficient to warrant a conviction Avithout corroboration. R. v.
■^^ tinkles, I. R. 8 C. Lu 50, 58; J?, v. Sullivan, 16 Cox 347: Archhd.
I
Crim. PI, 24th ed., 399.
CONFESSIONS AND ADMISSIONS BY ACCUSED. 215
(a) To exclude a confession the inducements must have been
held out by a person in authority, that is, some one engaged in the
arrest, detention, examination or prosecution of the accused; or
by some one acting in the presence and without the dissent of such
a person. See Phipson, 5th ed., at p. 250, and cases there cited.
(&) A promise or threat in order to exclude a confession must
relate to the charge, that is, must reasonably imply that the
prisoner's position with reference to it will be rendered better or
worse according as he does or does not confess. It need not, how-
ever, be express, but may be implied from the conduct of the per-
son in authoritj^, the declarations of the prisoner, or the circum-
stances of the case. R. v. Gillis, 11 Cox %%. Nor need it be made
directly to the prisoner; it is suflScient if it may reasonably be
presumed to have come to his knowledge, providing, of course, it
appears to have induced the confession. R. v. Thompson, supra.
On the other hand, fear alone, without threats, will not ex-
clude a confession. N"or will a promise or threat to one prisoner
exclude a confession made by another who was present and heard
the inducement. R. v. Jacobs, 4 Cox 54; R. v. Bate, 11 Cox 686,
though perhaps the principle of R. v. Thompson, supra, would in-
clude such a case: Phipson, 5th ed., p. 251. Nor will an induce-
ment to confess as to one crime invalidate a confession as to a
different one. R. v. Warner, Russ. Cr. 7th ed., 2174n, unless both
are parts of the same transaction. R. v. Hearn, 1 C. & M. 109.
(c) If the impression produced by the promise or threat is
clearly shewn to have been removed, e.g., by the lapse of time, or
by any intervening caution given by some person of superior (but
not of equal or inferior authority) to the person holding out the
inducement, a confession subsequently made will be strictly re-
ceivable. Phipson, 5th ed., 252.
(d) The whole confession must be taken although containing
matter favourable to the prisoner, though the jury may attach
different degrees of credit to the different parts. And if the con-
fession implicates others their names cannot be omitted, though
the Judge should warn the jury that it is only evidence against
the maker. Phipson, p. 253.
(e) It is in general immaterial to whom a voluntary confes-
sion has been made — statements made by the accused to the prose-
cutor, or which he has been overheard muttering to himself, if
otherwise than in his sleep, or made in confidence to a fellow
prisoner, or to his wife, or solicitor, are admissible against him.
Phipson, 253.
i^
216 confessions.
Prevailing Doctrine, \
But the doctrine in England at present and the prevailing
doctrine in the United iStates is, that evidence of any confession
L- i ja receivable unless there has been some inducement held out bv
^ i ^me person who bad, or was supposed to have, authority to assure
the accused the promised good. 6 Am. & Enq. Ency. 5Ji8.
The well known rule as to the admission, or rejection, of a
confession made by a prisoner is to the effect that no confession
by the prisoner is admissible which is made in consequence of any
threat, or inducement, of a temporal nature having reference to
the charge against the prisoner made or held out by a person in
authority. Dubuc, J., at p. 51i8, and see Bain, J., at p. 524, in
R. V. Todd, (1901) 4 C. C. O. 514.
The general rule is that a free and voluntary confession made
by a person accused of an offence is receivable in evidence against
him as the highest and most satisfactory proof of guilt, because
-^ I it is fairly presumed that no man would make such a confession
against himself if the facts confessed were not true. R. v. Lamhe.
L 2 Leach C. 0. 625.
" Whatever justification there might be for a person in author-
ity endeavouring to worm a confession out of a suspected person,
there was certainly no justification of such a resort to falsehood.
The statement " You might as well own up as to have it brought
out in a Court of Justice," made to the accused, was equivalent to
" if you do not tell us it will be brought out in a Court of Jus-
tice." Such a threat made by a person in authority renders the
confession inadmissible." Per Scott, J., in R. v. MacdoncUd,
(1896) 2 C. C, C. 221,
The burden is on the Ctown to prove that a confession of guilt
made to a person in authority was free and voluntary. R. v. Pah-
Cdh-Pah-Ne-Capi, 4 C. C. C. 93; and see R. v. TutUj, (1905) 9
C. 0. C. 544.
It must be proved affirmatively to the satisfaction of the trial
Judge that it was made freely and voluntarily and not in response
to any threat, or suggestion of advantage, to be inferred either
directly or indirectly, used by a person in a position of authority
in connection with the prosecution. R. v, Ryan, (1905) 9 C. C.
C. 347, 9 0. L, E. 137.
Held, that a rector of a parish was a person in authority, and
that a statement to him by a boy member of his choir concerning
CONFESSIONS MADE AFTER AEREST. 217
an assault on another boy was not voluntary, and so not admissible
in evidence. B. v. Royds, 10 B. C. E. 407.
Confessions Made After Arrest.
It was held by Duff, J., in R. v. Kay, 9 C. C. C, 406, 11 B.
C. R. 157, that after arrest the accused ought to be warned and
made to understand that he was being questioned with the ob-
ject of extracting admissions to be used against him. In this
case the statements were made after the arrest of the accused in
answer to questions put by the chief constable. " In such a case
it is not in my opinion sufficient for the prosecution simply to
shew that no inducement was put forward by way of threat or
promise express, or implied. The arrest and charge are in them-
selves a challenge to the accused to sneak, an inducement within
the rule. The accused ought, therefore, to have been warned of
the consequences of speech, and made to understand that he was
being questioned with the object of extracting admissions to be
used against him." Duff, J., p. 404, ibid. This case was fol-
lowed by Ritchie, J., in R. v. Cooh, 22 0. C. C. 241.
" In my opinion when a prisoner is once taken into custody '\
policeman should ask no questions at all without admim'stering
the usual caution." Hawkins, J., in R. v. Histed, 19 Cox 16,
and see remarks of Hunter, C.J., at the trial in R. v. Bruce, 12
C. C. C. 275. See also R. v. Rossi, 17 C. C. C. 182.
But in Rogers v. Hawken, 19 Cox 122, Russell, C.J., and
MaI-hew, J., disapproved of the following judgment by Cave,
J.:—
"It is quite right for a police constable, or any other police
officer, when he takes a person into custody to charge him, and
let him know what it is he is taken up for, but the prisoner
should be previously cautioned because the very fact of charging
induces a prisoner to make a statement, and he should have been
informed that such a statement may be used against him. The
law does not allow a Judge or the jury to put the questions in
open Court to prisoners, and it would be monstrous if the law per-
mitted a police officer to go without anyone being present to see
how the matter was conducted, and put a prisoner through an
examination and then produce the effects of that examination
against him. Under these circumstances a policeman should keep
his mouth shut and his ears open. He is not bound to stop a
prisoner in making a statement; his duty is to listen and report,
218
CONFESSIONS IN ANSWER TO QUESTIONS.
A
but it is quite another matter that he should put questions to
prisoners." Oave, J., in R. v. Male & Cooper, (1893) 17 Cox
689. And in R. v. Brackenbury, 17 Cox 628, Mr. Justice Day
took an opposite view and received such evidence. See the cases
collected in Phipson, at p, 252.
It, therefore, seems to be the better opinion, based on deci-
sions of Courts of Appeal as opposed to those of single Judges pre-
siding at trials, that the mere fact that the confessions were made
after, arrest in answer to questions by the police is not sufficient
to exclude them, if they are shewn to be otherwise voluntary and
not procured by any threat or indncemenK See the following
H cases.
The general principle governing the receivability of statements
made by the accused person to persons in authority is stated by
Wr. Justice Cave in R. v. Thompson, 17 Cox 641, at p. 645,
same case, [1893] 2 Q. B. 12, at p. 17, as follows : —
" If these principles and the reasons for them are, as it seems
impossible to doubt, well founded, they afford to magistrates a
simple test by which the admissibility of a confession may be
decided. They have to ask: Is it proved affirmatively that the
confession was free and voluntary — that is, was it preceded by any
inducement held out by a person in authority to make a state-
ment? If so, and the inducement has not clearly been removed
before the statement was made, evidence of the statement is in-
admissible."
On this question the law, at all events in Ontario, seems to
be well settled, and one of the best expressions of it is as follows:
" The great weight of authority is in supiwrt of the conclusion
that answers given in response to the officer in charge are to be
received in evidence so long as they are not evoked, or extorted,
by inducements, or threats. The general principle is that ad-
missions made to the officer in charg-f' even in response to ques-
tions may be received if the presiding Judge is satisfied that they
were not unduly, or improperly, obtained, which depends on the
circnmstances of each case.^^ Boyd. C. at p. 98. delivering the
judgment of the Court of Appeal for Crown cases reserved in R.
V. Elliott, (1899) 3 C. C. 0. 95.
"" " We think- although we reprehend the practice of questioning
prisoners, that wp rannof^ cfime to the conclusion that evidence
obtained by snch questioning is inadmissible. The great weiprht
m -England and Ireland, and all the cases in which
V
L
of authorii;v
CONFESSIONS IN ANSWER TO QUESTIONS. 219
the point has been considered by a Court for Crown casea re-
served, go to shew that the evidence is admissible. "We must leave
it to the Jefflsiature to determine whether the practice of cross- ■/-
examining prisoners is le^aUy to obtain hereafter. We hold the
evidence admissible and attirm the conviction.'^ Armour. C.J..
for the Queen's Bench Division, in B. v. Day. (18901 20 0. R.
"209! ' ""■"
This last decision as stated by Boyd, C. in E. v. Elliott, set-
tled the law in Ontario upon this subject, and it was approved in
the Appellate Court of Quebec in R. v. Vim, 7 Que. Q. B. 362.
Statements made by a prisoner in a cell to a person whom he
reasonably supposed to be an agent sent by his counsel to inter-
view him regarding the defence, are as much privileged as would
be statements made to the counsel himself. When persons con-
cealed themselves outside the cell in a position to overhear such
statements in pursuance of a scheme previously planned, the
interview should be treated as one with several persons who had
fraudulently adopted the character of the counsel's representa-
tives and the cloak of privilege should be applied to what was
heard by the listeners without, as well as the one within the cell.
B. V. Choney, (1908) 17 M. R. 469, 13 O. 0. C. 289.
" Generally speaking, it may be said that it is no objection to |
the admissibility of a prisoner's confession that it was obtained ' n^
by means of a trick, or artifice, practised upon him by the ofifi- .
cer or other person to whom it was made." Osler, J.A., at p. 33 i
in n. V. White, (1908) 15 C. C. C. 30. ""^
In n. V. Todd, 4 C. C. C. 514, 13 M. R. 364, statements made
by the prisoner, relating to charges upon which he was afterwards
arrested, to two detectives, induced by false representations, were
held to be admissible, as there was then no charge pending against
the prisoner, the detectives were not peace officers and the prisoner
did not know that they were detectives. - -i
A confession is admissible, although it is elicited in answer i
to a question which assumes the prisoner's guilt, or is obtained "jT
by artifice or deception. Joy on Confessions, p. Jf2; Arch. Cr. P.
& Ev., 24th ed., 1910, p. 395; Roscoe, 13th ed., p. U.
But not if it appears that such an admission was suggested
to the prisoner by a peace officer with inducements and was
shortly after made to a Oro\vn officer as a result of such induce-
ments. R. V. Hope Young, (1905) 10 O. C. C. 466. Wliere a
constable gave the usual caution to a prisoner, but afterwards said
220 RECEPTION OF CONFESSIONS IN EVIDENCE.
to him, " The truth will go better than a lie — if anyone prompted
you to do it, you had better tell about it,'' whereupon the pri-
soner said that he did the act complained of. Held, the admis-
sion was not receivable in evidence and a conviction grounded
thereon was improper. B. v. Fennell, 7 Q. B. D. 147, followed:
R. V. Romp, 17 0. R. 567. Statements to constable and coroners,
see R. V. FinJcle, 15 C. P. 453. Statements to detectives, see R.
V. AUmood, 20 0. R. 574; R. v. Day, 20 0. R. 209.
An entirely voluntary confession by the accused made to one
in autbority without interrogation by him is admissible althou^
no caution or formal warning was given to the accused: R. v.
Bnu:e, 12 C. C. C. 275; R. v. Uoo Sans, 19 C. C. O. 259.
See also the following cases on this subject: R. v. Trepanier,
19 0. C. 0. 290; R. v. Cummings, 19 O. C. 0. 358, and R. v.
James, 19 C. C. C. 391.
An acknowledgment of a subordinate fact, not directly involv-
ipg guilt and not essential to the crime charged, is not a "con-
fession" within the above rules excluding confessions to persons
in authority unless shewn to have been made freely and volun-
tarily: R V. Hurd, 21 C. C. C, 98, a unanimous decision of five
Judges in the Supreme Court of Alberta.
By sec. 978 of the Code, any accused person on his trial for
any indictable offence, or his counsel, or solicitor, may admit any
fact alleged against the accused so as to dispense with proof
thereof. This does not apply to preliminary inquiries, but to the
trial of the person summarily, or by indictment. .
Evidence of statements made by a person since deceased, im-
mediately after an assault upon him, under apprehension of
further danger and requesting assistance and protection, is ad-
missible as part of the res gestae, even though the person accused
of the offence was absent at the time when such statements were
made. GilbeH v. The King, (1907) 38 S. C. R. 284; R. v. Bed-
dingfield, 14 Cox 341 ; R. v. Foster, 6 C. & P. 325, and Aveson v.
Kinnaird, 6 East 188, followed.
Statements not coincident in point of time with the occur-
rence of the assault, but uttered in the presence and hearing of
the accused and under such circumstances that he might reason-
ably have been expected to have made some explanatory reply
to remarks in reference to them, are admissible in evidence.
Gilbert v. R., supra.
witnesses for the defence. 321
Witnesses for the Defence.
686. After the proceedings required by section six hundred and eighty-
four are completed the accused shall be asked if he wishes to call any wit-
nesses.
2, Every witness called by the accused who testifies to any fact rele-
vant to the case shall be heard, and his deposition shall be taken in the
same manner as the depositions of the witnesses for the prosecution.
Unless the accused can call witnesses whose evidence will es-
tablish his innocence of the charge, or explain away the circum-
stances adduced in evidence by the prosecution in such a way
as to clear him, it is not generally wise from the prisoner's point
of view "to call witnesses at this stage.
Experienced counsel very seldom avail themselves of this op-
portunity of going into the evidence for the defence, being con-
tent with the cross-examination of the witnesses for the prosecu-
tion, and reserving their full defence till the trial.
Lord Denman, O.J., in R. v. Smith, 2 C. & K. 207, said:
"If a person in whose possession stolen property is found give
a reasonable account of how he came by it, and meikes reference
to some known person as the person from whom he received it,
the magistrate should send for that person and examine him,
as it may be that his statement may entirely exonerate the accused
person and put an end to the charge." And see B. v. Crowhurst,
1 0. & K. 370, and R. v. Hughes, 1 Cox 176; R.r.Dihley,2 C.&
K. 818; R. V. Earmer, 2 Cox 487; R. v. Wilson, Dears. & B. 157.
As to the general right of a person charged before a magistrate
with an indictable offence to call witnesses for the defence, see
In re Phipps, 8 A. B. 77, and R. v. Meyer, 11 P. E. 477.
Adjudication and Subsequent Steps and Bail.
687. When all the witnesses on the part of the prosecution and the
accused have been heard the justice shall, if upon the whole of the evidence
he is of opinion that no sufficient case is made out to put the accused upon
his trial, discharge him.
2. In such case any recognizances taken in respect of the charge shall
become void, unless some person is bound over to prosecute under the pro-
visions of the next following section.
The justice is not called upon to decide the guilt or innocence
of the ac'cused, but, after considering the whole evidence, he has
to form an opinion as to whether, or not, a sufacient case has been
macle out to put the accused upon his trial. It is not for the
juRfi^y fn Vtalanpp n^ wftjgh the evidence as if he was trying the
accused for the offence charged.
222 FINAL ADJUDICATION BY JUSTICE.
If the witnesses for the accused have explained away the facts
given in evidence by the witnesses for the prosecution which go
to the root of the matter and they establish the prisoner's inno-
cence, or the utter improbability of the story put up by the pro-
secution, this will render further proceedings unnecessary and the
accused should be discharged.
If, on the other hand, there is a flat contradiction of testimony
between the witnesses for the prosecution and those for the de-
fence in material features of the case, then it is well to commit
the accused in order that a jury may have an opportunity of hear-
ing the evidence and deciding the truth of the conflicting state-
ments.
If the justice feels that the witnesses for the prosecution are
unworthy of belief, or the evidence offered by them establishes
a very slender case and there is a likelihood that, if the case is
sent for trial, the jury will acquit him, he should discharge the
accused.
It is to be borne in mind that a dismissal by a justice on a
preliminary inquiry is not an acquittal of the accused, and that
it ie open to the Orown to lay another charge against him for
the same offence. R. v. Waters, 12 Cbx 390 ; R. v. Morton, 19 C.
P., at p. 26; Re Hmnay, (1905) 11 C. O. C. 23; R.\. Guerin,
16 Cox 596-601, and R. v. Burhe, 19 C. C. O. 141.
As to the magistrate's discretion to re-open the inquiry after
evidence heard and nothing has been shewn against the accused,
see Belanger & Mulvena, Q. L,, E. 22 S. C. 37. Tg instifv thp
committal of an accused person for trial or for extradition, it is
only necessary that the evidence should be such as amounts to pro-
bable cause to believe him guilty. It ie not necessary that it be
sufficiently conclusive to authorize his conviction. Wurtele, ^.,
at p. 273, in Ex parte Feinberg, (1901) 4 C. C. C. 270.
To commit only requires that the circumstances proved are
sufficiently stix>ng in themselves to warrant a cautious man in
the peliei that the person accused is probably guiltv of the offence
with which he is charged. Ibid.
Binding over Prosecutor.
688. If the justice discharges the accused, and the person preferring
the charge desires to prefer an indictment respecting the said charge, he
may require the justice to bind him over to prefer and prosecute such an
indictment, and thereupon the justice shall take his recognizance to prefer
and prosecute an indictment against the accused before the CJourt by which
BINDING OVER PROSECUTOR COMMITMENT FOR TRIAL. 223
such accused would be tried if such justice had committed him, and the
justice shall deal with the recognizance, information and depositions in the
same way as if he had committed the accused for trial.
2. Such recognizance may be in form 21, or to the like effect.
689. If the prosecutor so bound over at his own request does not
prefer and prosecute such an indictment, or if the grand jury does not find
a true bill, or if the accused is not convicted upon the indictment so pre-
ferred, the prosecutor shall, if the Court so direct, pay to the accused per-
son his costs, including the costs of his appearance on the preliminary in-
quiry.
2. The Court before which the indictment is to be tried or a Judge
thereof may in its or his discretion order that the prosecutor shall not be
permitted to prefer any such indictment until he has given security for
such costs to the satisfaction of such Court or Judge.
If the information, or evidence, do not disclose a criminal
offence, the justice is not called upon to bind the prosecutor over
under sec. 688. Ex parte Wason, L. R. 4 Q. B. 573; R. v.
London, Lord Mayor of, 16 Cbx 81.
As to any one bound over under sec. 688 preferring indictment,
see sec. 871 of the Code. And see R. v. Hoc YoTce, (1905) 10 C.
C. C. 211.
As to costs incurred, as provided by sec. 689, see R. v. St.
Louis, (1897) 1 C. C. C. 141; and see R. v. Hart, 45 U. C. R.
1; May v. Reid, 16 A. R. 150; and R. v. Fitzgerald, 1 0. C. 0.
420, 29 0. R. 203.
Commitment for trial.
690. If a justice holding a preliminary inquiry thinks that the evi-
dence is sufficient to put the accused on his trial, he shall commit him for
trial by a warrant of commitment, which may be in form 22, or to the like
effect.
A justice's warrant of commitment for trial must describe an
offence for which a commitment for trial can be legally made.
Ex parte Welsli, (1898) 2 C. C. C. 35.
Justices may substitute a good warrant of commitment for a
bad one. That is, they may return an amended, or fresh, warrant
with the writ of certiorari, and, if it is sufficient, the Court will
not inquire into the validity of a previous warrant under which
the prisoner was committed. Re Plunkett. (1895) 1 C. C. C.
365, 3 B. C. R. 484. ~
A warrant of commitment is not invalid merely on the ground
that it does not disclose an indictable offence if the depositions
disclose such an offence. R. v. Beaudoin, 22 C. 0. C. 319, follow-
ing R. V. Brown, [1895] 1 Q. B. 119, and R. v. Phillips, 11 C.
0. C. 89.
224 COMMITTING ACCUSED FOR TRIAL.
Prisoner had been committed under a warrant which was de-
fective. Subsequent to the service on the gaoler of a writ of
habeas corpus, he received another warrant which was regular.
Held that the second warrant was valid and suflBcient to detain
the prisoner in custody. B. v. House, 2 M. E. 58.
One justice may sign a warrant of commitment. A warrant
may be partly written and partly printed. The warrant was ad-
dressed to the keeper of the common gaol at the City of Winni-
peg, instead of to the keeper of the common gaol of the Eastern
Judicial District. Held, sufficient, as there can be no uncertainty
as to the person to whom the warrant is addressed, there being
only one common gaol in Winnipeg. But the prisoner was dis-
charged as the warrant did not disclose an offence known to the
law. R. V. Holden, (1886) 3 M. E. 579.
Held, that the warrant of commitment was insuflBcient, as it
contained no mandatory words directing the keeper of the gaol
to receive the prisoner into his custody, and there imprison and
keep him for a specified time, &c. R. v. Barnes, (1887) 4 M. E.
448.
The warrant must shew where the prisoner is to be confined.
Re King, 37 C. L. J. 317.
A warrant of commitment on the charge that A " did steal a
certain waggon" was held sufficient without alleging absence of
any colour of right, or laying property in any person. R. v. Leet,
20 C. L. T. Occ. N. 46.
The decision of the magistrate in committing for trial or ad-
mitting to bail cannot be reviewed on certiorari. R. v. JJ. Ros-
common, [1894] 2 Q. B. Ir. 158. After committing, he is functus
officio. See R. v. LusUngton, [1894] 1 Q. B. 420.
" The warrant is bad, as it does not shew the jurisdiction of
the magistrate. He had jurisdiction only as being stipendiary
magistrate for the district and not as a justice of the peace, but
he is described as a justice of the peace. It cannot be inferred
from the letters " P. M." appended to his signature, that he was
stipendiary for that district; he might be stipendiary for some
other district. Prisoner discharged." Hunter, O.J,, in R. v.
Hong Lee, (1909) 15 C. C. C. 39. See also Lajleur v. Vallee, 19
C. C. 0. 362.
Commitments to the custody of gaolers, etc., must be in writ-
ing (or part writing and part printing), under the hand and seal
of the justice making the commitment, directed to the gaoler, or
COPY OF DEPOSITIONS — RECOGNIZANCE. 225
keeper, of prison, mentioning the time and place of making it. 2
HoADh. P. C, ch. 10, 513.
The name, oflBce and authority of the justice ought to be
shewn on the face of the warrant. 2 Hah 122. See further,
" Chapter on Summary Convictions," Chap. VIII. The duties of
a constable receiving a warrant of commitment are prescribed by
see. 704 of the Code.
Copy of Depositions.
691. Every one who has been committed for trial, whether he is bailed
out or not, shall be entitled at any time before the trial to have copies of
the depositions, and of his own statement, if any, from the officer who has
custody thereof, on payment of a reasonable sum not exceeding five cents
for each folio of one hundred words.
In E. V. Srmih, 1 Stra. 126, a rule was granted to compel,
a justice of the peace to cause an examination taken before him
to be produced at the trial and to give the party a copy in the
meantime.
In an action for a malicious prosecution, a rule was obtained
for the committing magistrate tO' shew cause why he should not
permit the plaintiff to inspect and take a copy of the information
at his own expense and cause the original to be produced at the
trial. Welch v. Richards, Barnes 468.
A Court stenographer is a public official against whom a man-
damus may issue for non-performance of his official duty to fur-
nish an applicant with a copy of evidence taken at a criminal
trial. E. v. Camphell, (1905) 10 C. C. C. 326.
Eecognizance to Prosecute or Give Evidence.
692. When any one is committed for trial the justice holding the pre-
liminary inquiry may bind over to prosecute some person wUling to be so
bound, and bind over every witness whose deposition has been taken, and
whose evidence in his opinion is material, to give evidence at the Court
before which the accused is to be indicted.
2. Every recognizance so entered into shall specify the name and sur-
name of the person entering into it, his occupation or profession, if any,
the place of his residence and the name and number, if any, of any street
in which it may be, and whether he is owner or tenant thereof or a lodger
therein.
3. Such recognizance may be either at the foot of the deposition or
separate therefrom, and may be in form 23, 24 or 25, or to the like effect,
and shall be acknowledged by the person entering into the same, and be
subscribed by the justice or one of the justices before whom it is ac-
knowledged.
c.c.p. — 15
226 RECOGNIZANCE TO PROSECUTE OB GIVE EVIDENCE.
4. Every such recognizance shall bind the person entering into it to
prosecute or give evidence (both or either as the case may be), before the
Court by which the accused shall be tried.
5. If it is made to appear to the justice that any person to be so
bound over as a witness is without means or without sufficient means, or
if other reasons therefor satisfactory to him are shewn, the justice may
require that a surety or sureties be procured and produced and join in the
recognizance, or that a sum of money be deposited with the justice, suffi-
cient in his opinion to insure the appearance of such person at the trial
and the giving of his evidence.
Sub-section 5 was added by the amendments to the Code in
1909. Infants and married women who cannot legally bind them-
selves must procure others to be bound for them. Infancy, how-
ever, is no ground for discharging a forfeited recognizance to
appear and prosecute for a felony. Ex parte Williams, 13 Price
623.
Recognizances need not be signed by the persons entering into
them, but they are required to be signed by the justice taking
them.
It is suggested that a person depositing a sum of money as
provided by sub-sec. 5 should at the same time enter into a per-
sonal recognizance and the deposit be accepted as ancillary^ to the
bond.
See sec, 840 of the Code as to recognizances taken under this
section being obligatory when the person committed elects to take
a speedy trial under Part XVIII. of the Code.
Recognizances taken under this section upon a Sunday are
regular. Hannington, J., in Ex parte Garland, (1901) 8 C. C.
C. 3S5.
If the recognizance is for the next Court of competent juris-
diction, it only requires appearance at that Cburt, not at a later
one. Re Cohen's Bail, 16 C. L. T. Occ. N. 217. As to estreat
of recognizances, see post.
Warrant for Absconding Witness.
693. Whenever any person is bound by recognizance to give evidence
before a justice, or any criminal Court, in respect of any offence under this
Act. any justice, if he sees fit, upon information being made in writing
and on oath, that such person is about to abscond, or has absconded, may
issue his warrant for the arrest of such person.
2. If such person is arrested, any justice, upon being satisfied that the
ends of justice would otherwise be defeated, may commit sueb person to
prison until the time at which he is bound by such recognizance to give
evidence, unless in the meantime he produces sufficient sureties.
3. Any person so arrested shall be entitled on demand to receive a
copy of the information upon which the warrnnt for his arrest was issued.
■WARRANT FOR ABSCONDING WITNESS — ^BAIL. 227
694. Any witness who refuses to enter into or acknowledge any such
recognizance as aforesaid may be committed by the justice holding the in-
quiry by a warrant in form 26, or to the like effect, to the prison for the
place where the trial is to be had, there to be kept until after the trial, or
until the witness enters into such recognizance as aforesaid before a jus-
tice having jurisdiction in the place where the prison is situated.
2. If the accused is afterwards discharged any justice having such
jurisdiction may order any such witness to be discharged by an order which
may be in form 27, or to the like effect.
695. The information, if any, the depositions of the witnesses, the
exhibits thereto, the statement of the accused, and all recognizances en-
tered into, and also any depositions taken before a coroner, if any such
have been sent to the justice, shall *as soon as may be after the committal
of the accused, be transmitted to the clerk or other proper oflScer of the
Court by which the accused is to be tried.
2. When any order changing the place of trial is made the person
obtaining it shall serve it, or an office copy of it, upon the person then in
possession of the said documents, who shall thereupon transmit them and
the indictment, if found, to the officer of the Court before which the trial
is to take place.
EuLB AS TO Bail.
696. When any person appears before any justice chai'ged with an
Indictable offence punishable by imprisonment for more than five years,
other than treason or an offence punishable with death or an offence
under any of the sections seventy-six to eighty-six inclusive, and the evi-
dence adduced is, in the opinion of such justice, sufficient to put the ac-
cused on his trial, but does not furnish such a strong presumption of guilt
as to warrant his committal for trial, the justice, jointly with some other
justice, may admit the accused to baU upon his procuring and producing
Buch surety or sureties as, in the opinion of the two justices, will be suffi-
cient to ensure his appearance at the time and place when and where he
ought to be tried for the offence ; and thereupon the two justices shall take
the recognizances of the accused and his sureties, conditioned for his ap-
pearance at the time and place of trial, and that he will then surrender and
take his trial and not depart the Court without leave.
2. In any case in which the offence committed or suspected to have
been committed is an offence punishable by imprisonment for a term less
than five years, any one justice before whom the accused appears may ad-
mit to bail in manner aforesaid, and such justice or justices may, in his
or their discretion, require such bail to justify upon oath before him or
them as to their sufficiency.
3. In default of such person procuring sufficient bail, such justice or
justices may commit him to prison, there to be kept until delivered ac-
cording to law.
4. The recognizance mentioned in this section shall be in Form 28.
In R. \. Oibson, (1896) 3 C. 0. C. 451. Meagher. J., at p.
461, says : "^ There does not appear to be any provision in the Code
whicn requires the justice, in cases where he discharges the ac-
cused, or where, acting under the provisions of sec. 601 (now
696'), he bails hun and, does not commit him, to transmit the
depositions to any (Jourt or officer.^^
It is true that there is no specific provision as to transmitting
the depositions when the accused is released under sec. 696, yet
228 ADMITTING TO BAIL IN LIEU OP COMMITMENT.
the practice is to send all the depositions, etc., along with the
recognizance, to the proper oflScer, the same as if the accused had
been committed under sec. 695.
The recognizance entered into by the accused when admitted
to bail under this section (Form 28) is identical with the recog-
nizance which he and his sureties would entea* into if he had been
committed to gaol and then admitted to bail on a Judge's order.
Besides, it is necessary that the information, depositions, etc.,
should be sent by the justice to the proper oflBcer, as under sec.
695, in order that they may be perused by the Crown officers for
consideration as to whether or not an indictment will be preferred
against the accused. This matter is dealt with at length in order
that justices may not be misled by the fact that there are no
specific provisions in the Code for the transmission of the papers
when they choose to exercise the authority given them by this
section of the Code. There is no doubt that the papers should
be dealt with exactly as under sec. 695. In considering this sec.
696, several things are to be observed.
(1) The proceedings are not applicable when the accused is
charged with" (o) treason, (6) with an offence punishable with
death (this includes rape: Be Hopfe's Bail, 22 C. C. 116), or (c)
offences under any of the sections of the Code 76 to 86 inclusive.
These offences are: Sec. 76, Accessory to treason; 77, Levying
war by subject of a foreign state that is at peace with His Ma-
jesty; 78, Treasonable offences; 79, Conspiracy to intimidate
a legislature; 80, Assault upon the King; 81, Inciting to mu-
tiny; 82, Persuading enlisted soldier to desert, or concealing a
deserter; 83, Eesisting execution of a search warrant for a de-
serter; 84, Persuading men to desert from militia, E. N. W. M.
P., etc., 85, Entering fortress, camp, ship, etc., for wrongfully
obtaining information; 86, Communicating information acquired
in oflBce.
(2) "Where the offence is punishable by imprisonment for more
than five years, two justices must join in admitting the accused
to bail and taking the recognizance. A police, or stipendiary
magistrate, can act alone, as they exercise the powers of two
justices.
(3) Where the offence is punishable by imprisonment for a
term less than five years, one justice before whom the accused
appears may admit to bail.
BAIL AFTER COMMITTAL. 229
If the maximum term of imprisonment should be exactly five
years, it is submitted that two justices would be required for the
allowance of bail.
(4) And the justice or justices may require the bail to justify
upon oath before him or them as to their sufficiency.
(5) In default of the accused procuring sufficient bail, the
justice may commit him to prison to await his trial.
(6) The recognizance shall be in Form 28.
Any one admitted to bail under sec. 696 of the Cbde is not de-
prived of his right to a speedy trial under sec. 825, Part XVIII.,
of the Code. See E. v. Lawrence, (1S96) 1 0. C. C. 295, and
n. T. Burke, 24 0. E. 64.
697. Where the offence is one triable by the Court of General or
Quarter Sessions of the Peace and the justice is of opinion that it may bet-
ter or more conveniently be so tried, the condition of the recognizance may
be for the appearance of the accused at the next sittings of that Court
notwithstanding that a sitting of a superior Court of criminal jurisdiction
capable of trying the offence intervenes.
This section applies in Ontario and Quebec since they are
the only provinces in Canada that have Courts of General, or
Quarter Sessions.
Bail aftee Committal.
698. In case of any offence other than treason or an offence punish-
able with death, or an offence under any of the sections seventy-six to
eighty-six inclusive, where the accused has been finally committed as herein
provided, any Judge of any superior or County Court, having jurisdiction
in the district or county within the limits of which the accused is con-
fined, may, in his discretion, on application made to him for that purpose,
order the accused to be admitted to bail on entering into a recognizance
with suflScient sureties before two justices, in such amount as the Judge dir-
ects, and thereupon the justices shall issue a warrant of deliverance as
hereinafter provided, and shall attach thereto the order of the Judge direct-
ing the admitting the accused to bail.
2. Such warrant of deliverance shall be in Form 29.
699. No Judge of a County Court or justices shall admit any person
to baU accused of treason or an offence punishable with death, or an of-
fence under any of the sections seventy-six to eighty-six inclusive, nor
shall any such person be admitted to bail, except by order of a superior
Court of criminal jurisdiction for the province in which the accused stands
committed, or of one of the Judges thereof, or, in the province of Quebec,
by order of a Judge of the Court of King's Bench or Superior Court.
700. When any person has been committed for trial by any justice,
the prisoner, his counsel, solicitor or agent may notify the committing jus-
tice that he will, as soon as counsel can be heard, move before a superior
Court of the province in which such person stands committed, or one of the
Judges thereof, or the Judge of the County Court, if it is intended to
apply to such Judge, under section six hundred and ninety-eight, for an
order to the justice to admit such prisoner to bail.
230 BAIL AFTER COMMITTAL.
2. Such committing justice shall, as soon as may be, after being so
notified, transmit to the clerk of the Crown, or the chief clerk of the Court,
or the clerk of the County Court, or other proper oflScer, as the case may
be, endorsed under his hand and seal, a certified copy of all informations,
examinations and other evidence touching the offence wherewith the pri-
soner has been charged, together with a copy of the warrant of commit-
ment, and the packet containing the same shall be handed to the person
applying therefor for transmission, and it shall be certified on the outside
thereof to contain the information concerning the case in question.
3. If any justice neglects to comply with the foregoing provisions of
this section, according to the true intent and meaning thereof, the Court,
to whose officer any such information, examination, other evidence, or war-
rant of commitment ought to have been delivered, shall, upon examination
and proof of the offence in a summary manner, impose such fine upon such
justice as the Court thinks fit.
These sections will be considered together. The proceedings
for bail are commenced, as provided in sec. 700, by the prisoner,
OT his counsel, notifying the committing justice that he will, as
soon as counsel can be heard, move either before a superior Court,
or a Judge thereof, or before a Judge of a County Court, under
the provisions of sec. 698, for an order to the justice to admit
such prisoner to bail.
As soon as he is thus notified, the justice shall transmit to
the proper oflBcer a certified copy of all informations, examina-
tions, etc., touching the offence wherewith the prisoner has been
charged and also a copy of the warrant of commitment, in a
packet under his hand and seal, and the packet may be handed
for transmission to the person applying therefor. The packet
shall be certified on the outside thereof to contain the information
covering the case in question.
Neglect upon the part of the justice to comply with these pro-
visions will subject him to a fine imposed on summary proceeding
by the Court to whose officer he should have transmitted the
papers.
The application for bail is made to a Judyfi of a superior
Court, or County Court. A justice, or magistrate, has no power
to bail alter an accusea person has been actually committed for
trial; he is then functus officio. A Judge of a County Court has
no power to grant bail, and no justice on the order of a County
Court Judge snaii aamit any one to bail who is accused of treason,
or oi an ottence punisnable with death, or of any of the offences
under sees, 76 to 86 inclusive. Sec. 699.
It is entirely in the discretion of the Judge to whom the appli-
cation is made as to whether he will make an order for bail, or
not.
BAIL AFTER ACCUSED IS COMMITTED. 231
When a true bill has been found on an indictment for nrnrder,
bail will usually be refused. R. v, Keeler, 7 P. R, 117, and see
Ex parte Maguire, (1857) 7 L. 0. E. 57.
If the depositions afford a presumption of "^uilt, at least so
strong that a grand jury would, in the opinion of the Judge before
whom tne ay>pli(;^tlon 15 Iflftde lor hail^ tin^ a. fr^]f bill again'sT
the accused for murder, the application should be refused. U. v.
Mvllady et ah, (1868) 4 P. K. 314^ — —
Prisoners charged with murder will not be admitted to bail
unless under unusual circumstances, as where facts are ad-
duced to the Court which establish that it is unlikely that the
indictment can be sustained. R. v. Murphy, (1853) 3 N". S. R.
158.
The Court has undoubted power to admit to bail in case of
murder. Re Barthelemy, 1 E. & B. 8.
Where a habeas corpus has been issued, the Court has power
to admit persons to bail when accused of any felony, including
murder. R. v. Fitzgerald, 3 F. C. R. (O.S.) 300; R. v. Higgins,
4 IT. C. R. (O.S.) 83.
Bail are sureties taken by a person duly authorized for the
appearance of a defendant charged with an indictable offence,
at a certain day and place, to answer and be justified by law.
Hale's Sum., 96 Bait. 1.
The defendant is placed in the custody of his bail, who may
re-seize him if they have reason to suppose that he is about to fly,
and bring him before a justice, who will commit the prisoner in
discharge of his bail. Ihid. See sec. 703 and sec. 1088 of the
Code.
If insufiBcient bail has been taken, or if the sureties become
afterwards insufiBcient, the accused may be ordered by any magis-
trate to find suflBcient sureties and in default may be committed
to prison; and the justice who admitted a defendant to bail upon
insufficient sureties is responsible if the defendant does not appear.
Hale's Sum., P. 0. 97.
If the defendant cannot immediately find sureties, he shall
be admitted to bail upon finding them at any time before convic-
tion. R. V. Shehheare, 1 Burr. 460.
It is for the Court to exercise a sound discretion, and if satis-
fied that, notwithstanding the ordering of bail, the prisoners are,
in view of all the circumstances, likely to be forthcoming at the
232 PRINCIPLES GOVERNING ADMISSION TO BAIL.
proper time to answer the charge, bail may be ordered. Harri-
son, C.J., at p. 120, in R. v. Keeler, (1877) 7 P. R. 117, and
cases there cited.
On an application for bail for persons committed for trial on
charges of personation at an election, Killam, J., said, at p. 132 :
" In such cases, there is not only the danger of parties fleeing to
avoid punishment, but that bail may be intentionally forfeited to
avoid scandal." R. v. Stewart et al., (1900) 4 C. C. C. 131.
Where a person has been committed upon a charge of wilful
murder, found by a coroner's jury upon evidence sufficient to
support the finding, a superior Court will not admit him to bail,
especially when the accused has made a statement admitting his
participation in the affair out of which the charge of murder
arises. Ex parte Barronnet, (1852) 1 E. & B. 1.
"In determining whether or not to admit an accused person
to bail, the principal thing to be considered is, therefore. lhe_ pro-
bability ot ills appearing for trial, and to determine this question
it is proper to consider the nature of the offence charged and its
3^, his
doubt
exists as to tne guiJt of the accused and he is entitled to the
benefit of every reasonable doubt, his application for bail should
be granted. Then again, if, on the evidence, it stands indifferent
wnetner the accused is guiliy, or innocent, the rule generally is
to admit mm to oaii : but, if, on the contrary, his guilt is beyond
dispute, tne general rule is noi io grant the application tor bail
unless iht; l!^p][^ortunities to escape do not appear to be possible and
the" probability of his appearing for trial is consequently con-
siderable, if not sure/' "Wurtele, J., at p. 193, in Ex parte
Fortier, (l^OS) 6 0! C. C. 191, 13 Q. E. K. B. 151.
The test to govern the discretion of the Court on an applica-
tion for bail is the probability of the accused appearing to take
"ETs trial. The Court in applying the test will be guided by a
consideration of the nature of the crime charged, the severity
of the possible pumshment, and the probability of a con\-iction.
R. v. Gottfriedson, (1906) 10 C. C. C. 239.
.A superior Court has jurisdiction to admit to bail while the
preliminary inquiry is pending before the magistrate, several re-
mands having taken place without the Crown tendering any evi-
dence, the reason offered being that witnesses were required from
a distance. In this case, the Judge made it a condition that the
proposed sureties must attend before the magistrate and submit
punishment, the strength of the evidence against the accusea,
character, his means and his standing. Where a serious (
PRINCIPLES GOVERXING ADMISSION TO BAIL. 233
to an examination as to their means and property and their
reliability. R. v. Hall, (1907) 12 C. C. C. 492; and see R. v.
Cox, (1S88) 16 0. E. 228.
The Judges of a superior Court, in the plenitude of that power
which they enjoy at common law, may in their discretion admit
persons to bail in all cases whatsoever, though committed by jus-
tices of the peace, or others, for crimes in which inferior jurisdic-
tions would not venture to interfere, and the only exception to
their discretionary authority is where the commitment is for a
contempt, or in execution. R. v. Marks, 3 East. 163, 2 Hale 129,
2 Hawk. ch. 15; Rudd's Case, 1 Cowper, at p. 333, and see the
cases cited in Burn's Justice, at p. 370.
Even where the commitment is in execution, the Court, where
a certiorari has issued to bring up a conviction under which a
party is in prison, will admit him to bail until the case is deter-
mined by the Court. R. v. Lord, 16 L. J. M. C. 15.
The power, however, is to be exercised in the discretion of the
Court, and none can claim its benefits de jure. 2 Bale 129.
The Judges seldom admit a person to bail where magistrates
have properly refused it, without some particular circumstances
are shewn to exist in his favour. Bac. Ah. Bail. U. k. v. Udl-
rdgher, ^ Ir. C L. K. 19.
The ill-health of the party in custody is not of itself sufficient
ground to induce the Court to bail him, but where he has been
for some time in prison, so that his life is actually in danger,
the Court might perhaps bail. R. v. Bishop, 1 Chit. C. L. 99, 1
Stra. 9. They will not admit him to bail where the complaint is
constitutional. R. v. Wyndham, 1 Stra. 4. Nor where the illness
arises from the acts of the prisoner. Harvey of Comb's Case, 10
Mod. 334.
A person out on bail is in custody and he is constructively in
gaol; and Jie lias the same right to be released from this custody
as lie would have to be released from imprisonment. Per WuR-
TELE, J., in K. v. Cameron, (lg97) 1 C. O. C. 169.
An order for bail may be rescinded and the accused re-com-
mitted, if it be shewn that the bail put in was fictitious. R7\.
Mason, 5 P. R. 125.
A witness committed on a bench warrant for perjury may be
released on bail by the same Judge who made the order of com-
mittal. Re Ruthven, 2 C. C. C. 39.
2(34 PRINCIPLES GOVERNING ADMISSION TO BAIL.
Where the charge for which a person has been committed for
trial is a misdemeanour at common law, and not provided for in
the Code, one justice of the peace may commit for trial and also
admit to bail as at common law. R. v. Cole, (1902) 5 C. C. C.
330.
" I should be very slow to admit to bail a person who has been
arreste? or committed for extradition. 1 cannot recall an in-
stance of its having been done, though possibly a search, had I
the time to make it, might shew that it is not absolutely without
precedent." Osler, J. A., in Ke Watts, (1902) 5 0. C. C. 538?^
The sureties ought to be at least two men of ability, but whose
sufficiency, as well as the sum to be expressed in their recogniz-
ance, are, it is said, left in a Just degree to the discretion of the
magistrates, and, therefore, they may examine them upon oath as
to the value of their propertv'. 2 Hale 125.
The Judge granting the order for bail directs or fixes the
amount of the bail, so that what the justices or magistrates who
are to admit to bail should be most concerned about is the '' suffi-
ciency " of the bail. The accused should produce, or procure, such
sureties as, in the opinion of the justice or justices, will be suffi-
cient to ensure the appearance of the accused at the time and
place appointed for his trial. Each of the sureties should be well
able to answer the sum in which he is bound. The sureties should
justify, that is, make affidavit, as to their being freeholders, or
householders, and that they are worth the amount for which they
have become surety, over and above what will pay their debts and
liabilities and every sum for which they are liable, and setting out
a description of the property owned by the sureties.
The recognizance should be in Form No. 28, and must be
entered into before two justices. A recognizance can be taken by
a police magistrate, or a stipendiary magistrate, they having the
power of two justices.
^Yhere a prisoner has been tried and found guilty of murder
and sentenced to death, but an appeal secured a new trial, he
should not be admitted to bail pending his second trial unless
there has been " an unreasonable and unjust delay " upon the
part of the Crown in bringing on the second trial. McCraw v.
The King, (1907) 13 C. C. C. 337.
As to depositing cash in lieu of giving bail in the ordinary
way, "see Robinson v. District of Saawicli, 20 C. C. C. 241.
order for bail — bailed person absconding. 235
Order for Bail.
701. Upon application for bail as aforesaid to any such Court or
Judge, the same order concerning the prisoner being bailed or continued in
custody, shall be made as if the prisoner was brought up upon a habeas
corpus.
702. Whenever any justice or justices admit to bail any person who
is then in any prison charged with the offence for which he is so admitted
to bail, such justice or justices shall send to or cause to be lodged with
the keeper of such prison, a warrant of deliverance under his or their hands
and seals, requiring the said keeper to discharge the person so admitted to
bail if he is detained for no other offence, and upon such warrant of de-
liverance being delivered to or lodged with such keeper, he shall forth-
with obey the same.
The justices cannot admit to bail until they have received tbe
order of a Judge granting bail. The order fixes the amount
of the bail and the justices will guide themselves accordingly.
Any two, justices who have jurisdiction may admit to bail — it
need not be the justices who committed the accused. The justices
shall attach to the warrant of deliverance the order of the Judge
d!^recting the admitting of the accused to bail. The warrant of
deliverance is to be directed to the keeper of the prison where the
accused is detained, and is to be signed by the justices admitting
to bail, and must be under seal. For the contents of the warrant,
see Form 29.
Person Bailed Absconding.
703. Whenever a person charged with any offence has been bailed in
manner aforesaid, it shall be lawful for any justice, if he sees fit, upon the
application of the surety or of either of the sureties of such person and
upon information being made in writing and on oath by such surety or by
some person on his behalf, that there is reason to believe that the person
so bailed is about to abscond for the purpose of evading justice, to issue
his warrant for the arrest of the person so bailed, and afterwards, upon
being satisfied that the ends of justice would otherwise be defeated, to
commit such person when so arrested to gaol until his trial or until be
produces another sufficient surety or other sufficient sureties, as the case
may be, in like manner as before.
The procedure to be adopted by the sureties, under the pro-
visions of this section, is for one of the sureties, or some person
authorized by him, or acting on his behalf, to lay an informa-
tion before a justice of the peace having jurisdiction. And the
justice may then issue his warrant for the arrest of the pereon
bailed who is about to abscond. The warrant may be executed
in the same manner as a warrant to arrest in the first instance.
If the person is apprehended under the warrant, he will appear
before the justice in the usual way, and if the justice, after hear-
ing the evidence adduced, is satisfied that the ends of justice
would otherwise be defeated, he may commit such person to gaol
236 ESTREAT OF RECOGNIZANCES.
until his trial, or until he produces other suflfieient sureties in
like manner as before.
Delivery of Accused to Gaoler.
704. Tlie constable or any of the constables, or other person to whom
any warrant of commitment authorized by this or any other Act or law
is directed, shall convey the accused person therein named or described to
the gaol or other prison mentioned in such warrant, and there deliver him.
together with the warrant, to the keeper of such gaol or prison, who shall
thereupon give the constable or other person delivering the prisoner into
his custody, a receipt for the prisoner, setting forth the state and condi-
tion of the prisoner when delivered into his custody.
2. Such receipt shall be in form 30. *<
Estreat of Eecognizance,
If the condition of a recognizance entered into, either by a
party or his bail, be broken, the recognizance is forfeited, and on
its being estreated, the parties become debtors to the Orown for
the sums in which they are respectively bound. The word estreat
(extractum) signifies a true note of an original writing, as amer-
ciaments imposed in the rolls of a Court from which they were
extracted (or estreated), and it is so used in Westm. ch. 2, Termes
de la Ley. Archhold, PI £ Ev. 24th ed., 119.
For the provisions of the Code relating to the tender of ac-
cused by sureties and the estreats of recognizances, see Part XXI.
of the Code, sees. 1086 to 1119.
It seems that the defendant and his bail cannot be called upon
their recognizance except on the day on which he is bound to
appear; if he is called on any other day, notice must be given of
the intention. R. v. Adams, 1 Burns' Justice, 379.
The bail are not entitled to have their recognizance discharged
without submitting to the terms of paying the costs incurred. R.
V. Lyon, 3 Burr. 1461; R. v. Finmore, 8 T. R. 409; R. v. Turner,
15 East 570.
If the principal do not appear and the recognizance be for-
feited and the penalty paid by the bail, yet the principal continues
amenable to the law whenever he can be taken. The persons, or
bodies, of the bail are not liable under the recognizance, if they
pay the penalty. R. v. Dalton, 2 Stra. 911, 2 Hale 125.
See Re McArthur's Bail, (1897) 3 C. 0. C. 195; Zn re Talbot's
Bail, (1892) 23 0. R. 65; R. v. Hamilton, (1899) 3 C. C. C. 1;
U. v. Ymng, (1901) 4 0. C. 0. 580; Re Barrett's Bail, (1903)
7 C. C. 0. 1; R. V. Bole, (1905) 9 C. C. C. 500; i?. v. May, (1905)
9 C. C. C. 529: Re Pippy, (1908) 14 C. C. C. 305.
SUMMARY CONVICTIONS. 237
CHAPTER VIII.
Summary Convictions.
PART XV. OF THE CRIMINAL CODE^
Interpretation.
705. In this Part, unless the context otherwise requires, —
(a) "territorial division" means district, county, union of counties,
township, city, town, parish or other division or place ;
(&) "the Court" in the sections of this Part relating to justices
stating or signing cases means and includes any superior Court of
criminal jurisdiction for the province in which the proceedings in
respect of which the case is sought to be stated are carried on ;
(c) "district" or "county" includes any territorial or judicial divi-
sion or place in and for which there is such Judge, justice, justice's
Court, oflBcer or prison, as is mentioned in the context;
(d) "common gaol" or "prison" for the purpose of this Part means
any place other than a penitentiary in which persons charged with
offences are usually kept and detained in custody ;
(e) "clerk of the peace " includes the proper officer of the Court
having jurisdiction in appeal under this Part, and, in the province
of Saskatchewan or Alberta, and in the Northwest Territories, means
the clerk of the Supreme Court of the judicial district within which
conviction under this Part takes place or an order is made.
Application of Part XV.
706. Subject to any special provision otherwise enacted with respect
to such offence, act or matter, this Part shall apply to, —
(o) every case in which any person commits, or is suspected of
having committed, any offence or act over which the Parliament of
Canada has legislative authority, and for which such person is
liable, on summary conviction, to imprisonment, fine, penalty or
other punishment ;
(6) every case in which a complaint is made to any justice in relation
to any matter over which the Parliament of Canada has legislative
authority, and with respect to which such justice has authority by
law to make any order for the payment of money or otherwise.
It is provided by sec. 29 of the Interpretation Act, E. S. 0.
ch, 1, as follows : " Unless the context otherwise requires, a refer-
ence in any Act to, (a) The Summary Convictions Act shall be
construed as a reference to Part XV. of the Criminal Code."
In previous chapters, we have dealt fully with the responsibility
of justices and magistrates in the performance of their duties
and the exercise of their powers within their jurisdiction. Also
238 JURISDICTION IN RECEIVING INFORMATIONS.
as to the laying of informations and the issuing of warrants and
summons, and reference can be had to the chapter dealing with
these matters, since there is no necessity for repeating all the
authorities given, or the text.
Jurisdiction.
707. Every complaint and information shall be heard, tried, deter-
mined and adjudged by one justice or two or more justices as directed by
the Act or law upon which the complaint or information is framed or by
any other Act or law in that behalf.
2. If there is no such direction in any Act or law, then the complaint
or information may be heard, tried, determined and adjudged by any one
justice for the territorial division where the matter of the complaint or
information arose : Provided that every one who aids, abets, counsels or
procures the commission of any offence punishable on summary conviction,
may be proceeded against and convicted either in the territorial division or
place where the principal offender may be convicted, or in that in which
the offence of aiding, abetting, counseling or procuring was committed.
708. Any one justice may receive the information or complaint, and
grant a summons or warrant thereon, and issue his summons or warrant
to compel the attendance of any witnesses for either party, and do all other
acts and matters necessary preliminary to the hearing, even if by the statute
in that behalf it is provided that the information or complaint shall be
heard and determined by two or more justices.
2. After a case has been heard and determined, one justice may issue
all warrants of distress or commitment thereon.
3. It shall not be necessary for the justice who acts before or after
the hearing to be the justice or one of the justices by whom the case is to
be or has been heard and determined.
4. If it is required by any Act or law that an information or com-
plaint shaU be heard and determined by two or more justices, or that a
conviction or order shall be made by two or more justices, such justices
shall be present and acting together during the whole of the hearing and
determination of the case.
It was held by Beck^ J., in Re Baptiste Paul (No. 2), 20 C. C.
C. 161, reversing the decision of Simmons, J., in Re Baptiste Paul
(No. 1), 20 C. C. C. 159, that a magistrate has no jurisdiction to
try a prisoner brought before him in a summary conviction matter
by an arrest without warrant in a case where a warrant is required
by law, if the prisoner protests before the magistrate against the
illegal procedure.
This decision was followed by Walsh, J,, in R. v, Davis, 20
C. C. C. 293. It is too late, however, to raise the objection after
conviction. R. v. Langlois, 20 C. C. C. 183.
In Papillo V. R., 20 C. C. C. 329, Cross, J:, came to a conclu-
sion directly opposite to that of Beck, J., in Re Baptiste Paul (No.
2), supra.
The examination and punishment of offences in a summary
manner by justices of the peace out of the sessions . . . are
JURISDICTION IN RECEIVING INFORMATIONS. 239
founded entirely upon a special authority conformed and regu-
lated by statute. But, where owing to some omissions in the
statute the power to convict summarily is not given in express
words, the justices may still proceed when it may reasonably be
implied from the rest of the statute that such jurisdiction was in-
tended to be given them. Foley, 8th ed., p. 16,
Thus when a statute declared that any person exposing in a
public place, where animals are commonly exposed for sale, any
animal infected with a contagious or infectious disease, should
be deemed guilty of an offence and should be liable to pay a pen-
alty not exceeding £20, it was held that, although there were no
express words making the penalties recoverable by summary pro-
cedure, yet that a jurisdiction was impliedly conferred upon jus-
tices to deal summarily with offences under the statute. Cullen \.
Trimble, L. E. 7 Q. B. 416, 26 L. T. 691 ; Johnson v. Colam, L.
E. 10 Q. B. 544, 32 L. T. 725.
Whether a Judge or magistrate in any matter has jurisdiction
and power to act, depends on the construction of the law invoked
as the authority for the jurisdiction and power claimed by him,
and the question is essentially one of law and therefore susceptible
of being reserved. Wurtele, J., at p. 13:7, in B. v. Paquin,
(1898) 2 C. C. C. 134. See B. v. Ackers (No. 3), (1910) 16 C.
C. C. 222.
No new offence is cognizable by justices of the peace out of
their sessions unless expressly made so by Act of Parliament, nor
can any power expressly given to a justice, to do a particular act,
be enlarged by inference. Foley, p. 17.
As the power vested in justices is of a special kind, where any ,
matter is referred to a particular description of justices the autli-
ority of all others should be excluded by that express designation.
Dalt. ch. 27. And, therefore, when a statute refers the matter to
the next justice, no other but the one answering that description
has any authority. Sanders' Cose, 1 Wms. Saund. 262.
If the statute refers the matter to justices in or near the
place where i!; took place, notwithstanding this it seems that any
justice of the county has jurisdiction over it. B. v. Jennings, -i
Keb. 383.
If a statute merely refers the matter to " any two justices^"
these words mean any two justices having jurisdiction by common
law or Act of Parliament, and does not enable justices to act out
//
240 JUSTICES ACTING ALONE, OR TOGETHER.
of their jurisdiction either in respect of its local limit or other-
wise. In re Peerless, 1 Q. B. 143 ^
As already stated in the chapter on jurisdiction, all the justices
of each district are equal in authority and the jurisdiction in any
particular case attaches in the first justice, or set of justices, or
magistrate, duly authorized, who have possession and cognizance
of the case to the exclusion of the separate jurisdiction of all
others. R. v. Sainshury, 4 T. E. 456 ; E. v. Bloom, 15 D. L. R. 484.
Where power is given to two justices finally to hear and de-
termine any offence, or when they are to do any other judicial
act, it is necessary that they should be together to hear the evi-
dence and to consult together at the time when they give judg-
ment. Battye v. Gresley, 8 East 319; R. v. Forrest, 3 T. E. 38.
We have already dealt at length with the impropriety and
illegality of justices acting in cases where they are interested
and likely to be biased, or in their own cases. Yet when a justice
is assaulted or (in the doing his oflBce especially) abused to his
face, and no other justice is present with him, then it seems he
may commit such offender until he shall find sureties for the peace,
or good behaviour, as the case shall require; but, if any otlier
justice be present, it were fitting to desire his aid. Dalt. 713, R.
V. Revel, 1 Str. 420.
AYhen a thing is appointed by statute to be done by, or before,
one person certain, such thing cannot be done by, or before, any
other; and, by strict express designation of one, all others are
excluded and their proceedings therein are coram non judxce.
Dait. en. b. Fosters Case, 11 Rep. 59 at p. 64. "
An authority given by statute to two cannot be executed by one.
Ihid.
Whatsoever any one justice alone may do, the same also may
lawfully be done by any two or more justices. Hatton's Case, 2
Salk. 477, Dalt. ch. 6, sec. 8.
The execution of the powers confided to justices of the peace
in summary convictions is generally watched by the Courts with
jealousy, such summary convictions being derogatory to the lib-
erty of the subject, and all powers given in restraint of liberty
must be strictiy pursued. Bracy's Case, 1 Salk. 349; Wilkins v.
^Yright, 2 Cr. & M. 191, 201.
In some cases the justice has a discretionary duty to take cog-
nizance of the matter; in others, as is most usual, the duty is
DISCRETION IN JUSTICES — TITLE TO LAND. 241
imperative. Upon this discretionary power it may be observed
that, where au Act of Parliament gives power to justices of the
peace to take order in any matter, according to their discretion,
this shall be understood according to the rules of reason, law and
justice and not by private opinion. 3 Burns' Justice, p. 137.
It has been observed by Lord Mansfield, C.J., that this dis-
cretionary power, where applied to a Court of justice, means
sound discretion guided by law. It must be governed by rule,
not by humour; it must not be arbitrary, vague and fanciful, but
legal and regular. R. v. Wilkes, 4 Burr. 2539.
" The discretion to be exercised by a Court or a Judge is not
a wild, but a sound discretion, and to be confined within those
limits within which an honest man, competent to discharge the
duties of his office, ought to confine himself." Lord Kenyon,
in Wilson v. Rastall, 4 T. E. 757.
One justice of the peace has power, on the return day of the
summons, to adjourn the proceedings until a future day, though
the jurisdiction to hear the case is given to two justices.
Wherever the concurrence of two justices is reqiuisite for any
judicial act, they must be present and acting together during the
whole of the hearing and determination of the case.
Where a verbal adjudication was made by two justices in petty
sessions and the formal order, being afterwards drawn up, was
signed by one on the 1st March and by the other on the 3rd,
it was held valid. Ex parte Johnson, 32 L. J. M, C. 193.
Title to Land in Question.
709. No justice shall hear and determine any case of assault or
battery, in which any question arises as to the title to any lands, tene-
ments, hereditaments, or any interest therein or accruing therefrom, or as
to any bankruptcy or insolvency, or any execution under the process of
any court of justice.
Under sec. 709, it has been held that justices cannot proceed
to inquire into and determine by summary conviction any excess
of force alleged to have been used in the assertion of title. R.
V. Pearson, L. R. 5 Q. B. 237, 22 L. T. 126.
To oust the summary jurisdiction of justices on the ground
that a bona fide question of title arises, it is sufficient to shew that
the act complained of as a trespass was committed in the exercise
of a supposed right which the alleged trespasser bona fide be-
lieved that he possessed. Matthews v. Qarpenier, 16 L. E. Ir. 420:
c.c.r. — 1(1
242 OUSTER OF JURISDICTION.
The claim, however, must be bona fide, and not a mere pre-
tence to oust jurisdiction, whether it raises a question of title, or
of any other matter which the justices cannot decide; and it is
for the justices to say whether the claim be bona fide, or a mere
pretence. R. v. Mmsett, 26 L. T. 429; R. v. J J. Derbyshire, 11
W. R. 780, and see R. v. Harran, 20 C. C. C. 72.
If the assault was independent of the question of title, the
fact that there was such a question is no defence, even if the
assault arose out of a dispute between the parties as to the title
of land. R. v. Edivards, 4 W. R. 287.
Though the defendants were acting upon supposed rights, yet,
if they exceeded what was necessary for the assertion or. protection
of these rights and thus committed damage, they were responsible
criminally for such cases. R. v. Clemens, [1898] 1 Q. B. 556.
And see R. v. Davidson, 45 U. C. R. 91 ; R. \\ McDonald, 12 0. R.
381.
This section applies only to common assaults. Miller v. Lea,
25 A. R. 428.
The question is also dealt with in the chapter on jurisdiction,
and see 3 Burns' Justice, 138.
Information and Complaint.
710. It shall not be necessary that any complaint upon which a justice
may make an order for the payment of money or otherwise shall be in
writing, unless it is so required by the particular Act or law upon which
such complaint is founded.
2. Every complaint upon which a justice is authorized by law to
make an order, and every information for any ofifence or act punishable
on summary conviction, may, unless it is by this Part or by some particular
Act or law otherwise provided, be made or had without any oath or
affirmation as to the truth thereof.
3. Every complaint shall be for one matter of complaint only, and
not for two or more matters of complaint, and every information shall be
for one offence only, and not for two or more offences.
4. Every complaint or information may be laid or made by the com-
plainant or informant in person, or by his counsel or attorney or other
person authorized in that behalf.
See remarks under sees. 654, 655, ante, p. 143.
The complaint for a fraudulent removal of goods is required
by 11 Geo. II., ch. 19, sec. 4, to be made in writing by the land-
lord, his bailiff, servant or agent, and where it did not appear on
the face of the adjudication, or commitment, that it had been so
made, the party committed under it was discharged. R. v. Fuller,
2 D. & L. 98.
TIME LIMIT FOR LAYING INFORMATIOX. 243
It was held in England, under the statutes in force there, that
a Court of summary jurisdiction has no power to convict of a
common assault, unless the party aggrieved, or some one on his
behalf, complains of the assault, with a view to the adjudication of
the Court upon it. Nicholson v. Booth, 57 L. J, M. 0. 43, 58 L.
T. 187; Pickering v. Willoughhy, [1907] 2 K. B. 296, hut our
Criminal Code contains no such limitation as to who can prose-
cute.
When Information should be Laid.
The information must be laid, or complaint made, within the
time limited by the particular statute on which it is founded; if
no period is fixed by the statute, it must be within six calendar
months from the time when the matter of the information arose,
except in the North-West Territories and the Yukon Territory,
where the time within which the complaint shall be made, or in-
formation laid, shall be twelve months from the time when the
matter of the complaint or information arose. See sec. 1142 of
the Code. See R. v. Edwards, (1898) 2 C. C. C. 96.
A summary prosecution in Ontario for erecting a wooden build-
ing within the fire limits contrary to a municipal by-law is barred
if complaint is not laid until after the expiration of six months
from the date of the offence. R. v. McKinnon, (1902) 5 C. C. C.
301.
A summary conviction alleging the offence as having been com-
mitted " within the space of six months last past previous to the
information," does not disclose an offence within six months be-
fore the laying of the information and is invalid. R. v. Boutilier,
8 C. C. C. 82. See also R. v. Breen, 8 C. C. 0. 146, and R. v.
WamhoU, 14 C. 0. C. 160.
Where the proceedings are in respect to a debt due to the
Orown and there is no express provision as to limitation applying
to the Crown, a general statute of limitations will not govern.
R. V. Lee How, (1901) 4 C. C. C. 551.
It was decided in R. v. Clark (No. 2), 12 C. 0. C. 485, that,
where the time limit for bringing a prosecution is contained in a
separate section of the statute creating the offence, it is not neces-
sary that the conviction should shew on its face that the limitation
has not been exceeded.
Where the offence is the neglect, or refusal, to do an act, as to
supply a copy of accounts, the six months' limit dates from the
244 RESPONSIBILITY OF INFANTS AND JOINT OFFENDERS.
time of the demand and refusal. Dudley Oas Co. v. Warmington,
50 L. J. M. C. 69, 44 L. T. 475.
Who is Eesponsible to the Law.
A married woman may be convicted on a penal statute if she
has committed an offence without the coercion, actual or implied,
of her husband, and it is not necessan' that her husband should be
joined in the conviction. R. v. Crofts, 2 Str. 1120, and see R. v.
Cruse, 8 C. & P. 541.
As to the responsibility of infants, see pp. 43, 44, supra.
The general rule of law ia that no one can be made criminally
responsible for the acts of third persons, but in some cases a man
may be brought within a penal statute by the acts of his agents or
servants. The employment of an agent in the defendant's usual
course of business is suflBcient evidence in such cases, whence the
magistrates, if they think fit, may presume that such an agent was
authorized to do the prohibited act with which it is sought to
charge the principal. Attorney-General v. Siddon, 1 C. & J. 230;
R. V. Stephens, 35 L. J. Q. B. 251 : Bosley v. Davies, 1 Q. B.
D. 84.
As to when the keeper of a place of public resort is responsible
as principal for the acts of his servants, and the servant is respon-
sible as aider and abettor, see Wilson v. Stewart, 3 B. & S. 913.
As to aiding, abetting, counselling or procuring the commis-
sion of offences, see sees. 69 and 70 of the Code, and Chap. II.,
p. 59.
An aider and abettor may be convicted, though the principal
be acquitted. R. v. Burton, 32 L. T. 539, 13 Cox 71.
An information may be against one of several joint owners of
property in proceedings for a wrongful act. R. v. JJ. Mon-
mouthshire, 26 L. J. M. C. 183.
Wliere the act is such that several may join in it, all the
offenders may be le^cally included in the same information and
conviction. J^x parte Biggins, 26 J. P. 244 ; R. v. Cridland, 7 El.
& B. 853; R. v. Toy Moou. 19 C. C. C. 3^, 51 M. .H. g^v' ; JTv.
Bloom, 15 D. L. E. 484. *
But, where separate convictions were drawn up upon a joint
information, the Court refused to order the justices to alter the
conviction by making it a joint one. Re Glee and Osborne, 21 L.
J. M. 0. 112.
REQUISITES OF INFORMATION. 245
On a joint information, a person is not entitled as of right to
be tried separately, it is a matter of discretion for the justices.
R. V. Littlechild, L. E. 6 Q. B. 293.
Eequisites of Information.
Whenever the information is required by statute to be in writ-
ing, that form must be preserved, but, unless expressly directed, it
is not necessary that it should be so. R. v. Millard, 22 L. J. M, C.
108 ; Ex parte Perliam, 5 H. & N. 30.
As we have seen, unless the letter of the statute so requires it,
it is not requisite that the information, or complaint, be upon
oath, unless of course a warrant I'o apprehend the per-son charged
is issued in the first instance instead of a summons, or a search
warrant is applied for; in that event the information must always
be under oath. See R. v. McDonald, (1896) 3 C. 0. C. 287.
The information stated in general terms that the informant
had reason to believe, and did suspect and believe, that the party
charged had committed an offence, without stating the grounds of
his information, and, apparently, without making thom known to
the magistrate. Held, that there had been no proper information
upon which a warrant could issue. It is the duty of the justice
before issuing the warrant to examine upon oath the complainant
or his witnesses as to the facts upon which such suspicion and
belief are founded and to exercise his own judgment thereon.
See Ex parte Grundy, (1906) 12 C. C. C. 65; Ex parte Gojfon,
(1905) 11 C. C. C. 48, and Ex parte Boyce, 24 N. B. E. 347.
If the information charges more than one offence, it should be
amended by striking out all but one of the charges, and only the
evidence on that charge should be heard. See R. v. Austin, (1905)
10 C. 0. C. 34, and R. v. Hazen, 20 A. E. 633, and R. v. Alwaa-d,
25 0. E. 519.
The offence may be laid as having been committed on divers
days and times between two dates. Onley v. Gee, 30 L. J. M. C.
222.
- • As to whether a charge is to be treated as for one offence or
more than one, and as to treating a series of continuous acts as one
offence, see notes to R. v. Michaud, 17 C. C, CL at pp. 97-103.
The inclusion of two offences in one information is a " defect
in substance " within the meaning of sec. 724 of the Code, post, >^
and no objection to the information can be allowed in respect of
it. If on the hearing it is objected that the information discloses
246 ISSUE OF WARRANT OR SUMMONS.
two offences, the prosecutor may be required to elect on "which
charge he will proceed, and the information amended accordingly.
An information is not objectionable on the ground that it
charges in the alternative several different matters, acts or omis-
sions which are stated in the alternative in the statute by which
the offence is defined : R. v. Mah Sam, 19 C. 0. C. 1.
See sec. 725, post, as to charging two offences, and as to un-
certainty in stating the offences to have been committed in dif-
ferent modes, etc.
It must be determined from the construction of the particular
statute whether several acts in the same day, and acts extending
over several days, constitute but one offence or several. R. v.
Scott, 33 L. J. M. O. 15, and see Bartholomew v. Wiseman, 56 J.
P. 455.
Summons and Warrant.
711. The provisions of Parts XIII. and XIV. relating to compelling
the appearance of the accused before the justice receiving an information
for an indictable offence and the provisions respecting the attendance of
witnesses on a preliminary inquiry and the taking of evidence thereon,
shall, so far as the same are applicable, except as varied by the sections
immediately following, apply to any hearing under the provisions of this
Part : Provided that whenever a warrant is issued in the first instance
against a person charged with an offence punishable under the provisions
of this Part, the justice issuing it shall furnish a copy or copies thereof,
and cause a copy to be served on the person arrested at the time of such
arrest.
2. Nothing herein contained shall oblige any justice to issue any
summons to procure the attendance of a person charged with an offence
by information laid before such justice whenever the application for any
order may, by law, be made ex parte.
All matters relating to the issue of summons and warrants, and
practice pertaining to the same, are fully gone into in Chap. VI.,
and reference can be made thereto for further precedents.
It is discretionary with the magistrate to issue either a sum-
mons or a warrant. Meredith, C.J., at p. 413, in R. v. McGre-
gor, (1895) 2 C. C. C. 410. See Mtirfina v. Sauve, (1901) 6 C.
C. C. 275; R. v. Ettinger, (1899) 3 C. 0. C. 387.
The application of sub-sec. 2 of sec. 711 is illustrated by the
case of the Public Health Act, or Health By-law, providing for
the condemnation of unsound meat upon the order of a justice;
such order may be made ex parte without notice to the owner of
the meat. R. v. White, 43 J. P.? Thomas v. Van Os, (1900) 2 Q.
B. 448 : Waye v. Thompson, 15 Q. B. D. 342.
SUMMONS OR WARRANT — BACKING WARRANTS. 247
If the information be for a penalty, or the non-payment of
money, the justice should in general issue a summons in the first
instance, before he grants a warrant, unless there is a probability
that the party will abscond as soon as he knows of the information,
or the object of the prosecution will otherwise likely be defeated.
Attention is called to the proviso in sec, 711 that, where a
warrant is issued in the first instance, the justice issuing it shall
furnish a copy or copies thereof and cause a copy of it to be served
on the person arrested at the time of such arrest.
This proceeding differs from an arrest under a warrant for an
indictable offence, where no copy is required to be served, it only
being necessary for the person executing the warrant to have it
with him and to produce it if required. See sec. 40 of the Code.
Sec. 711 incorporates into this Part the provisions of Parts
XIII. and XIV. of the Code relating to compelling the appear-
ance of the accused before the justice, and respecting the attend-
ance of witnesses and the taking of e"sddence as set forth in sec-
tions 658-661 of the Code, and the reader is referred to pages 144
et seq., where those sections are set out with comments, and cases
illustrating the rules which govern the issuing of a summons and
the service of the same, and the formalities surrounding the issue
of warrants and executing same.
Backing Warrants.
712. The provisions of section six hundred and sixty-two relating to
the endorsements of warrants shall apply to the ease of any warrant issued
under the provisions of this Part against the accused, whether before or
after conviction, and Avhether for the apprehension or imprisonment of any
Buch person.
Section 662 above referred to has been printed at page 167,
supra, with cases illustrating its meaning, to which may be added
the following:
The fact of a person being arrested outside the jurisdiction of
the justice without the warrant being backed, although irregular,
is not a ground for releasing the accused on habeas corpus. R. v.
Whiteside, (1904) 8 O. C. C. 478.
Summons for Witness out of Jurisdiction.
713. A summons may be issued to procure the attendance, on the
hearing of any charge under the provisions of this Part, of a witness who
resides out of the jurisdiction of the justice before whom such charge is
to be heard.
2. Every such summons and every warrant issued to procure the
attendance of a witness, whether in consequence of refusal by such witness
248 TEIAL IN OPEN COUBT.
to appear in obedience to a summons or otherwise, may be respectively
served and executed by the constable or other peace oflScer to whom the
same is delivered or by any other person, as well beyond as within the
territorial division of the justice who issued the same.
By sec. 711 the provisions of Parts XIII. and XIV. respecting
the attendance of witnesses on a preliminary hearing and the tak-
ing of evidence thereon, shall, as far as the same are applicable,
except as varied in this part, apply to any hearing under the pro-
visions of this part. Reference as to any of these matters should
be made to sees. 671 to 677, both inclusive, in the preceding chap-
ter and the notes thereon and cases cited.
As to who are competent and compellable witnesses, see the
previous chapter and the Oanada Evidence Act, post.
Trial — Open Court.
714. The room or place in which the justice sits to hear and try any
complaint or information shall be deemed an open and public CJourt, to
which the public generally may have access so far as the same can con-
veniently contain them.
By sec. 645 of the Oode, the Court or Judge or justice may
order that the public be excluded from the room and place in which
the Court is being held during the trial of the offences specified
and set out in that section.
And such an order may be made in any other case in which the
Court, Judge or justice may be of opinion that the same will be in
the interests of public morals.
Xote the distinction in this respect between a preliminary
hearing of an indictable offence, which, under section 679 of the
Code, may be in private at the magistrate's discretion, and the
trial of a summary conviction charge, where the rule is that it
must be in an open and public court, except as qualified by sec-
tions 714 and 645.
Police, district and stipendiai^y magistrates have the same
powers to preserve order in Courts held by them, and may exer-
cise the like ways and means of enforcing order as are used in
like cases and for the like purposes by any Court in Canada. This
power ie vested in those magistrates by sec. 607 of the Code, as
follows : —
Preserving Order in Court.
607. Every Judge of the Sessions of the Peace, chairman of the Court
of General Sessions of the Peace, police magistrate, district magistrate or
stipendiary magistrate, shall have such and like powers and authority to
PRESERVING ORDER IN COURT. 249
preserve order in Courts held by them during the holding thereof, and by
the like ways and means as now by law are or may be exercised and used
in like cases and for the like purposes by any CSourt in Canada, or by the
Judges thereof, during the sittings thereof.
This section does not confer such powers upon justices of the
peace. What powers they have as to preserving order in court
exist at common law and may be gathered from the following de-
cisions.
" Where a power resides in any Court, or Judge, to commit for
contempt, it is the peculiar privilege of such Oourt or Judge to
determine upon the facts, and it does not properly belong to any
higher tribunal to examine into the truth of the case. But, how-
ever indecent may have been the conduct of the parties committed,
we cannot do otherwise than discharge them from custody on this
warrant. It is not denied that a justice of the peace, while sitting
in the discharge of his duty, examining parties upon a criminal
charge, has power to protect himself from insult and to repress
disorder by committing for contempt any person who shall vio-
lently, or indirectly, interrupt his proceedings, or conduct himself
insultingly towards him. And it may be assumed for the present
that, where any person present behaves himself in such a manner
as to obstruct the justice's proceedings, he may order him at once
into custody and direct him to be withdrawn, so as to remove at
once the obstruction to the administration of justice ; or may com-
mit him till he finds sureties to keep the peace." Eobinson, C.J.,
in Be Clarke and Heermans, 7 TJ. 0. E. at p. 225.
In Young v. Saylor, 23 0. R. 513, 20 A. R. 645, it was held
that a justice of the peace holding Court under the Summary
•Convictions Act had no power summarily to punish for contempt
facie curice, at any rate without a formal adjudication and a war-
rant setting out the contempt. Armour v. Boswell, 6 0. S. 153,
352, 450, followed ; but that the justice had the power to remove
persons who by disorderly conduct obstructed or interfered with
the business of the Court. If the justice had issued his warrant
for the commitment of the plaintiff and had stated in it sufficient
grounds for his commitment, the Court could not have reviewed
the facts alleged therein, but there being no warrant the justice
was bound to establish such facts, upon the trial, as would justify
his course.
In Armour v. Boswell, 6 0. S. 153, 352 and 450, the plaintiff
was brought before the defendants, justices of the peace, charged
with an offence under 4 Wm. IV., ch. 4, for which the defendants
had power to convict summarily ; and, while before the defendants,
250 PRESERVING ORDER — CONDUCT OF TRIAL.
the plaintiff, it was alleged, assaulted one of the defendants and
insulted them and they directed a constable to arrest him without
issuing any warrant of commitment, and he was arrested and kept
in custody for a short time, and for this he recovered damages
against the defendants, because they had acted illegally in direct-
ing his arrest without a warrant.
The reason given for this decision was that jurisdiction to try
offences summarily has been conferred upon justices of the peace
by the statute law only, and tliey have no other powers than those
which are given to them by such law, and in the absence of any
statute law conferring such powers upon them, otherwise than as
above stated, they will exercise the same at the peril of incurring
an action for damages.
It would, therefore, seem that all that a justice of the peace
can do, in case of a contempt in the face of the Court, is to order
a constable to remove the offender from the court room or to ad-
journ the hearing.
It would seem that magistrates can only exercise this power
when the contempt is in the face of the Court and not outside
the Court room. R. v. Lefroy, L. E. 8 Q. B. 134.
As to witnesses refusing to be sworn and examined, or neglect-
ing to produce documents and the powers of justices respecting
the same, see sec. 678 of the Code and notes thereto in previous
chapter.
Conduct of Trial.
715w The person against whom the complaint is made or information
laid shall be admitted to make his full answer and defence thereto, and
to have the witnesses examined and cross-examined by counsel, solicitor
or agent on his behalf,
2. Every complainant or informant in any such case shall be at liberty
to conduct the complaint or information, and to have the witnesses
examined and cross-examined, by counsel or attorney on his behalf.
716. Every witness at any hearing shall be examined upon oath or
afSrmation, by the justice before whom such witness appears for the pur-
pose of being examined.
2. A Judge of any superior or County Court may appoint a commis-
sioner or commissioners to take the evidence upon oath of any person who
resides out of Canada and is stated to be able to give material information
relating to an offence for which a prosecution is pending under this Part,
or relating to any person accused of such offence, in the circumstances and
in the manner, mutatis mutandis, in which he might do so under section
nine hundred and ninety-seven ; and all the provisions of the said section,
in respect of matters arising thereunder, shall apply mutatis mutandis
to matters arising under this section : Provided that no such appointment
shall be made without the consent of the Attorney-General.
CONDUCT OF TRIAL BY JUSTICES. 251
In all cases wheresoever any man is authorized to examine wit-
nesses, such examination shall be taken and construed to be as the
law will, i.e., upon oath. Dalt., c. 6, s. 6.
The oath must be administered to each witness before he is ex-
amined, and administering it afterwards is irregular, for the wit-
ness ought to be under the sanction of an oath the whole time he
is giving his evidence. R. v. Kiddy, 4 D. & B. 734.
The judicial discretion which a justice has to exercise in cases
brought before him must be based on the evidence taken before
him, and it is not competent for him to act upon evidence taken
before another justice. R. v. Ouerin, 58 L. J. M. C. 43, and see
page 196, supra.
A person accused of selling intoxicating liquor must not be
refused an analysis of the liquor found on his premises, if he
denies that the liq,uor sold was intoxicating: R. v. Stephenson, 20
C. 0. C. 297.
The evidence must support the charge by proof of every
material fact, assigning a specific date and place to the offence.
E. V. Highmore, 2 L. J. Raym. 1220, R. v. Jeffries, 1 T. R. 241.
The degree of evidence and the credit due to the witnesses,
provided it be legally admissible, is exclusively for the judgment
of the justice.
As to the magistrate being himself called as a witness, see Ex
parte Flannagan, (1897) 2 0. C. C. 513, 34 N". B. R. 326; Ex
parte Hebert, (1898) 4 C. C. 0. 153, and see supra, page 76.
As to appearance by counsel, or solicitor, see R. v. Doherty,
(1899) 3 C. C. 0. 505; R. v. O'Hearn, (1901) 5 C. C. C. 187.
The information charged two offences; upon objection being
taken at the hearing the information was amended so as to
charge one offence, and that on a date different from either of the
dates named in the summons served. The defendant was then, for
the first time, made aware of the actual charge which he was
called upon to meet. He applied for an adjournment and this
was refused, and the trial proceeded without defendant having
any witnesses present and without opportunity to present a de-
fence apparently substantial and bona fide. The defendant was
convicted and imprisoned. Held, on habeas corpus and certiorari
proceeding?, that the refusal of the magistrate to grant the ad-
journment asked was in fact and deed to deny him that oppor-
tunity " to make full answer and defence which the Oode says he
shall have." To permit the confinement of the defendant to con-
252 OBJECTIONS AT TRIAL — TRYING SEVERAL CASES TOGETHER.
tinue " would, under the circumstances, be contrary to natural
justice and to the principles of our law." R. v. Eli, (1886) 10 0.
R. 727-733. An order will issue for the discharge of the prisoner
from custody. Anglin, J., pp. 532 and 533, in R. v. Farrell,
(1907) 12 C. C. 0. 524. See R. v. Butterfield, (1909) 15 C. C.
C. 101.
Objections at Trial.
Certain irregularities in procedure will be waived unless ob-
jected to at the trial, and it will be too late to raise them after-
wards.
For example, an objection to the jurisdiction because of the
arrest of the accused without a warrant in cases where such an
arrest is illegal : Re Baptiste Paul, 20 C. C. O. 161 ; R. v. Lang-
lois, 20 C. C. O. 183. An objection to the jurisdiction because of
the absence of a sworn information preceding the warrant upon
which the accused was arrested and brought before the magistrate.
R. V. DaA)is, 20 C 0. C. 293.
An objection on the ground of an irregular adjournment of
the hearing. Ex parte Giberson, 18 0. O. C. 355, R. v. Heffeman,
13 0. R. 616.
On the other hand an objection to the validity of a municipal
by-law, on the ground of its being ultra vires, may be taken on an
appeal against a conviction under it, although not raised before
the magistrate, and section 753 of the Code does not apply to
such an objection: Upton v. Brovm, 21 0. C, C. 190. See, also,
cases on this point collected at page 151, supra.
Trying Several Cases Together.
Upon more than one information for separate offences of a
similar character being lodged against a person, a magistrate
should not hear evidence at the same time as to all the charges,
where some of the evidence would be relevant to one of the
charges but not to the others : R. v. Lapointe, 20 C. C. C. 98, and
see Hamilton v. Walker, [1892] 2 Q. B. 25 : R. v. Fry, 67 L. J.
Q. B. 67; R. v. McBemy, 3 C. C. C. 339, and R. v. BurJce (No.
2), 8 C. C. C. 14.
See, however. Ex parte Monahan, 17 C. C. C 53.
If the justice is trying two or more charges against the same
person, it is better not to reserve judgment on the first case tried
TAKING A VIEW — EXCEPTIONS AND EXEMPTIONS. 253
until after the evidence on the other or others is heard, as there
are conflicting decisions as to the validity of such a course. See
R. V. McBemy, 3 C. C. C. 339 ; Hamilton v. Walher, 56 J. P. 583,
[1892] 2 Q. B. 25 ; R. v. Bulloch, 8 0. Cl C. 8 ; E. v. Sing, 6 C,
C. C. 156, against its validity, and R. v. Fry, 19 Cox. 135 ; R. v.
Iman Bin, 18 0. C. C. 82; Ex parte Monahan, 17 C. C. C. 53, in
favour of it.
Taking a View.
A magistrate has no right to take a view of anything in re-
epect of which evidence has been given before him, at least with-
out the consent of both parties. R. v. Crawford, 21 C. C. C. 70 ;
and Re Sing Kee, 5 O. C. C. 86.
Procedure on Non-appearance of Accused.
The prisoner was charged with being a vagrant, and, having
failed to appear on the return day of the summons, he was con-
victed without any proof having been made of the service of the
summons on him. The conviction was quashed. R. v. Levesque,
8 C. C. 0. 505.
Exceptions and Exemptions.
"717. Any exception, exemption, proviso, excuse or qualification,
whether it does or does not accompany in the same section the description
of the offence in the Act, order, by-law, regulation or other document
creating the offence, may be proved by the defendant, but need not be
specified or negatived in the information or complaint, and whether it is or
is not so specified or negatived, no proof in relation to the matter so
specified or negatived shall be required on the part of the informant or
complainant."
The above is sec. 717 as amended in 1909. See R. v. Boomer,
(1907) 13 C. C. C. 98, decided before that amendment.
As a general rule, the affirmative is to be proved and not the
negative of any fact which is stated, unless under peculiar cir-
cumstances when the general rule does not apply; for, when
the fact lies peculiarly within the knowledge of one party, it is
easy for him to prove it, but often impossible for the other. R. V.
Turner, 5 M. & S. 206.
Non-appearance of the Accused.
718. In case the accused does not appear at the time and place
appointed by any summons issued by a justice on information before him
of the commission of an offence punishable on summary conviction then,
254 NON-APPEAKANCE OF THE ACCUSED.
if it appears to the satisfaction of the justice that the summons was duly
served a reasonable time before the time appointed for appearance, such
justice may proceed ex parte to hear and determine the case in the absence
of the defendant, as fully and effectually, to all intents and purposes, as
if the defendant had personally appeared in obedience to such summons,
or the justice may, if he thinks fit, issue his warrant as provided by sections
six hundred and fifty-nine and six hundred and sixty and adjourn the hear-
ing of the complaint or information until the defendant is apprehended.
In case the accused does not appear, there are two modes of
procedure open to the justice: —
(1) If it appears to his satisfaction that the summons was
duly served a reasonable time before the time appointed for ap-
pearance, he may proceed ex parte to hear and determine the case
in the absence of the defendant as fully and effectually to all in-
tents and purposes as if the defendant had personally appeared.
As to service of summons " a reasonable time before," see Re
(rBrien, 10 0. C. C. 142; R. v. Craig, 10 C. C. 0. 249; R. v.
Levesque, 8 C. C. C. 505 ; R. v. Smith, 16 C. C. 0. 425, and R. v.
Mabee, (1&89) 17 0. E. 194.
(2) Or the justice may issue his warrant for the apprehension
of the defendant as provided by sees. 659 and 660, and adjourn
the hearing until the defendant is apprehended.
In proceeding in the absence of the defendant there must be a
due examination of witnesses under oath to substantiate the
charges as fully and with the same formality as if he were present
and made his defence.
It is to be remembered that the accused may appear by coun-
sel, solicitor or agent, so that if the defendant does not appear per-
sonally, but by counsel^ solicitor or agent,, then the provisions of
this section 718 will not apply. The appearance of the accused
" fii_J]\p. fimp ftnf^ plgpp appointed" means either his personal
appearance or by counsel, solicitor or agrent.
If the accused does not appear and the justice proceeds ex
parte, the information cannot be amended by substituting a dif-
ferent offence from that set out in the information as laid and
which the accused was summoned to defend, and the justice can-
not then proceed to conviction on the amended information.
" It seems so contrary to all principle that a person charged
with a specific offence, in an information and summons to answer
that offence, should at the hearing and in his absence be convicted
of an entirely different offence and practically acquitted of the
offence which he was summoned to answer, that no Act should be
construed so as to bring about such a result unless the provisions
were plain and unambiguous. ... I think the case which the
NON-APPEAEANCE OF ACCUSED — ^ADJOURNMENTS. 255
magistrate is authorized to go on and determine ex parte is the
one which the party has been summoned to answer, not a new one
atlogether." Barker^ J., at p. 85, in Ex parte Doherty, (1895) 1
C. C. C. 84; and see R. v. Lyons, (1905) 10 0. C. C. 130, and R.
V. Eornbrook, 38 N, B. E. 358, 4 E. L. E. 508.
As to amendment of the information at the hearing, the de-
fendant being present and not objecting and proceeding with his
defence, see R. v. Bennett, 3 0. E. 45.
Where there is a variance between the information and the
evidence in support, and the defendant is thereby deceived, or mis-
led, the justice may adjourn the hearing to some future day so as
to give the defendant an opportunity of meeting the new case that
has been made out by the prosecutor. See sec. 724 (4), post.
The hearing may be adjourned from time to time under this
section, although the accused be not present, provided the adjourn-
ments are made in the presence and hearing of his solicitor or
agent. Proctor v. ParJcer, (1899) 3 C. C. C. 374, 12 M. E. 528.
Parties who do not see fit to appear must ascertain the dates
to which proceedings are adjourned, or disregard them at their
peril. KiLLAM, J., ibid. See R. v. Kennedy, (1889) 17 0. R.
159.
An attorney authorized only to appear and defend cannot
plead guilty for the accused so as to authorize a conviction without
evidence when the defendant is absent. Ex parte Erickson, 31 N.
B. E. 296.
Where the defendant has failed to appear the information may
be amended so as to correct the date of the offence, but not to
charge a different offence. Ex parte TompTcins, (1906) 12 C. C.
C. 552.
Non-appearance of Prosecutor.
719. If, upon the day and at the place so appointed, the defendant
appears voluntarily in obedience to the summons in that behalf served
upon him, or is brought before the justice by virtue of a warrant, then, if
the complainant or informant, having had due notice, does not appear by
himself, his counsel, solicitor, or agent, ilihe justice shall dismiss the com-
plaint or information unless he thinks proper to adjourn the hearing of
the same until some other day upon such terms as he thinks fit.
720. If both parties appear, either personally or by their respective
counsel, solicitors or agents, before the justice who is to hear and deter-
mine the complaint or information, such justice shall proceed to hear and
determine the same.
If, after the issue of the summons and before the day appointed
for the hearing by the justice, the parties comipromise the matter
256 CORPORATIONS — ARRAIGNMENT OF ACCUSED.
and inform the justice of this fact, the justice still has jurisdiction
to convict and may, after taking evidence in the case, legally
adjudicate thereon notwithstanding the compromise. R, v. JJ.
Wiltshire, 8 L. T. 242 ; B. v. Truelove, 14 Ck)x C. 0. 403.
A defendant not present at the time, but represented by attor-
negr, may be convicted of a third offence under '* The Oanada
Temperance Act." Ex parte Grieves, 29 N. B. R. 543.
Corporations.
720A. When the defendant is a corporation, the summons may be
served on the mayor or chief oflScer of such corporation, or upon the clerk
or secretary or the like officer thereof, and may be in the same form as
if the defendant were a natural person.
2. The corporation in such case shall appear by attorney, and, if it
does not appear, the justice may proceed as in other cases.
This section was added in 1909. See R. v. Toronto Railway
Co., (1898) 2 C. C. C. 471.
Arraignment of Accused.
721. If the defendant is personally present at the hearing, the sub-
stance of the information or complaint shall be stated to him, and he shall
be asked if he has any cause to show why he should not be convicted, or
why an order should not be made against him, as the case may be.
2. If the defendant thereupon admits the truth of the information or
complaint, and shows no sufficient cause why he should not be convicted,
or why an order should not be made against him, as the case may be. the
justice present at the hearing shall convict him or make an order against
him accordingly.
3. If the defendant does not admit the truth of the information or
complaint, the justice shall proceed to inquire into the charge and for the
purposes of such inquiry shall take the evidence of witnesses, both for the
complainant and accused in the manner provided by Part XIV. in the case
of a preliminary inquiry.
4.^ The prosecutor or complainant is not entitled to give evidence in
reply if the defendant has not adduced any evidence other than as to his
general character.
5. In a hearing under this Part, the witnesses need not sign their
depositions.
It is only where the defendant is personally present that the
substance of the information is read or stated to him. If the de-
fendant admits the truth of the information, in other words
" pleads guilty " to the charge, and shews no sufficient cause why
he should not be convicted, or an order made against him, then
the justice shall convict him or make an order against him and
impose the penalty. The justice is required to make a minute or
memorandum of any conviction or order against a defendant. See
sec. 727, post.
PEOCEEDINGS AT TRIAL — ADJOURNMENTS. 257
A summary conviction made without evidence in the absence
of the accused on a plea of guilty entered by a solicitor for the
jiccused, but without proof of the solicitor's authority, is bad for
want of jurisdiction. R. v. Broadfoot, 17 C. C. C. 71, Otherwise,
however, if the solicitor's authority is proved. R. v. McDonald,
21 C. C. 0. 229.
If the accused appears personally, or by counsel, and he de-
sires to offer any preliminary objection to the information or
summons, all such objections should be taken and the ruling of
the justice thereon noted, before the defendant pleads, otherwise
the objection will be waived.
The defendant may appear and ask time in order that he may
consult his solicitor before pleading, and it is usual to grant such
a request if made hona fide, and to grant an adjournment for a
reasonable time. •
If the defendant appears and pleads not guilty and asks for
an adjournment in order to summon witnesses and prepare for his
defence, an adjournment should be made for such time as seems
reasonable in the case.
No adjournments shall be for more than eight days. Adjourn-
ments are in the discretion of the justice. They must be made to
a certain time and place appointed and stated in the presence of
the parties, or their counsel then present. See sec. 722.
A refusal to adjourn the case for the purpose of the defendant
obtaining legal assistance docs not go to the jurisdiction of the
justice so as to enable the defendant to quash a conviction on
certiorari for this cause. R. v. Biggins, 5 L. T. 605; and see Ex
parte Hopwood, (1850) 15 Q. B. 121; R. v. JJ. Cambridgeshire,
44 J. P. 168; R. v. Irmng, (1908) 14 C. C. 0. 489, and cases
post, under sec. 722.
If the charge is not admitted, and the defendant pleads not
guilty and the trial is proceeded with, the inquiry is to proceed
'' in the matter provided by Part XIV. in the case of a prelimin-
ary inquiry," sub-sec. 3 of sec. 721.
Upon reading sec. 682 supra, whicli contains the provisions
governing the taking of the evidence of witnesses in the case of a
preliminary inquir}'^, and bearing in mind the provisions of sees.
718, 720, and sub-sec. 5 of sec. 721, being the section now under
consideration, it will be noticed that it will be both impossible and
"nnnecessary in all cases to comply with the provisions of sec. 682.
c.c.p. — 17
258 MANNER OF TAKING EVIDENCE.
For example, by 682 (2), the evidence of the said witnesees
shall be given upon oath " and in the presence of the accused."
By sec. 718 the justice may proceed ex parte in the absence of
the accused when he has been served with the summons a reason-
able time before the hearing. The justice can thereupon proceed
to take the evidence of the witnesses for the complainant in the
absence of the accused, which could not be done at a preliminary
hearing. See sub-sec. 2 of sec. 682.
Again, by sec. 720, the justice may proceed to hear and deter-
mine the complaint or information if both parties appear either
personally or by their respective counsel, solicitors or agents — so
that the accused may be absent from the hearing and the justice
may proceed to take the evidence in his absence; and see sec. 722
(2) as to hearing on adjournment where parties do not appear.
And, by sub-sec. 5 of sec. 721, in a hearing under this part the
witnesses need not sign their depositions. Whereas by sec. 682
(4) the depositions at a preliminary hearing must be read over
and signed by both the witness and the justice in the presence of
the accused.
What presumably is meant, and at all events what is usually
done, is to take the evidence of the witnesses " as nearly as may
be" in the manner provided by sec. 682. The following rules
should be strictly followed:^ —
(1) Every witness at any hearing shall be examined upon oath
or affirmation. (Sec. 716).
(2) The evidence of each witness shall be taken down in writ-
ing in the form of a deposition, which may be in form 19
or to the like effect Sec. Q&2 (3).
(3) Although sec. 721 (5) says that the depositions under
this part need not be signed, it is always a wise precaution
to read over the deposition to each witness and get him,
or her, to sign it.
(4) The signature of the justice may be either at the end of
the deposition of each witness, or at the end of all the de-
positions, in such form as to shew that the signature is
meant to authenticate each separate deposition. Sec.
682 (5).
(5) The depositions may be taken in shorthand, as provided
by sec. 683 of the Code. In this event they need not be
either read over to the witnesses, or signed by them. It is
MODE OF TAKING EVIDENCE OF WITNESSES. 259
sufficient if thie transcript is signed by the justice before
whom they are taken and verified by the affidavit of the
stenographer. See the last chapter.
The omission to read over to the witnesses their respective de-
positions does not go to the jurisdiction of the magistrate. Ex
parte Steeves, (1908) 15 C. C. C. 160, and see Ex parte Gallagher,
14 C. C. C. 38; Ex parte Dolierty, 3 C. O. C. 310; B. y. Ride-
hough, 12 C. 0. C. 360.
Neither does the omission of the justice to sign the depositions
of the witnesses. Ex parte Budd, 17 CI C. O. 235.
The evidence of the witnesses must be taJfen in writing, and,
thie not having been done, the conviction was held bad. Denault
V. RoUda, (1894) 8 C. C. C. 501.
'^ The conviction is clearly bad. There is nothing to shew on
what evidence the prisoner was convicted, or even to shew how he
pleaded, there being no record kept of the proceedings. It is new
to me to learn that the validity, or the scope, of a conviction is to
depend on the justices' memory, which may not be called into
action for months, or even years after the event. If there is no
record, how can there be any effective remedy or appeal ?" Hux-
TER, C.J., at p. 314, in R. y. McGregor, (1905) 10 C. C. C. 313,
and see Re LoJCroix, (1907) 12 0. 0. C. 297.
The stenographer who took the e\ddence was not sworn to take
the evidence before he took down the same.
" The evidence, not being taken as provided by law, is not evi-
dence at all, and therefore there is no evidence taken that can be
read. I think this is a matter going to the jurisdiction. The
taking down of the evidence, as has been said in some of the cases
which I have cited, is a matter both for the protection of the
magistrate and the protection of the public, and there can be no
protection in the true sense of the word, either for the magistrate,
or for the public, unless the reporter takes down the evidence un-
der the solemnity of his oath. I therefore think that this is a
matter which affects the jurisdiction and is such an error as will
be sufficient to quash the conviction." Ceaig, J., at pp. 103, 104,
in R, V. L'Heureux, (1908) 14 C. C. 0. 100. See also R. v. John-
son, 19 C. C. C. 203.
A person accused and convicted of a charge of vagrancy con-
sented "that the depositions need not be taken down in writing, and
such consent was noted in the record of the proceedings. Held, on
260 MODE OF TAKING EVIDENCE OF WITNESSES.
certiorari, " that when the person of the accused and the subject
matter of the charge are within the cognizance of the tribunal, a
consent, which affects procedure only, will, in the absence of any
special circumstances forbidding it, establish a legal waiver . . .
1 conclude the consent given by Janneau was effective in law."
Conviction sustained. Davidson, J,, at p. 362, in R. v. Janneau,
(1907) 12 C. 0. C. 360, and see R. v. Warilow, (1908) 14 0. C.
C. 117, and R. v. Began, (1908) 14 C. C. C. 148.
The plea of guilty, whether made before or after whatever
examination there may have been of the informant, dominates the
matter. The conviction is in terms based upon it alone, and,
where the prisoner had pleaded guilty to a charge of vagrancy and
was sentenced to six months imprisonment and moved to quash
the conviction because the evidence was not taken down in writing,
the motion was refused and the conviction sustained. R. v. Oouht,
(1907) 12 C. C. C. 365.
The magistrate who convicts must have heard the evidence
and not allowed it to be taken in his absence by his clerk, or any
other person. R. v. Inhabitants of Barton, 12 A. & E, 78 ; R. v.
\Yatts, 33 L. J. M. C. 63.
If one of the justices who subsequently takes part in the con-
viction is not present at the hearing of the summons until a por-
tion of the evidence has been given, the witnesses should be re-
sworn and should again give their evidence, and it is not sufficient
that the evidence already given should be read over to such jus-
tice. The parties, however, may waive such an irregularity. R.
V. Jeffreys, 22 L. T. 786.
On a summary conviction trial, when all the evidence offered
by the prosecution has been heard and the case closed, the prose-
cutor cannot, upon objection taken that material proof is lacking,
withdraw the charge and lay a new information charging the
identical offence. If such is done, the defendant is entitled to
plead autrefois acquit. R. v. Cheto Beb, 21 C. C. C, 20, disap-
proving Ex parte Wyman, 5 C. C. O. 58.
Adjournment.
722. Before or during the hearing of any information or complaint
the justice may, in his discretion, adjourn the hearing of the same to a
certain time or place to be then appointed and stated in the presence and
hearing of the party or parties, or of their respective counsel, solicitors or
agents then present, but no such adjournment shall be for more than eight
days.
2. If. at the time and place to which the hearing or further hearing
is adjourned, either or both of the parties do not appear, personally or by
PEOOEDURE RELATING TO ADJOURNMENTS. 261
his or their counsel, solicitors or agents respectively, before the justice or
such other justices as shall then be there, the justice who is then there
may proceed to the hearing or further hearing as if the party or parties
were present.
3. If the prosecutor or complainant does not appear, the justice may
dismiss the information, with or without costs, as to him seems fit.
4. Whenever any justice adjourns the hearing of any case, he may
suffer the defendant to go at large or may commit him to the common gaol
or other prison within the territorial division for which such justice is
then acting, or to such other safe custody as such justice thinks fit, or
may discharge the defendant upon his recognizance, with or without sureties,
at the discretion of such justice, conditioned for his appearance at the
time and place to which such hearing or further hearing is adjourned.
5. Whenever any defendant who is discharged upon recognizance, or
allowed to go at large, does not appear at the time mentioned in the
recognizance or to which the hearing or further hearing is adjourned, the
justice may issue his warrant for his apprehension.
The justice should be careful to record, or note, all adjourn-
ments ; this is conveniently done by endorsing a memo, on the back
of the information. It can be in this form, " Remanded till
Friday the 10th day of July, A.D. 1910, at 10 a.m." (Sgd.)
John Brown, J.P.
Be sure to record the day of the week and date and hour, and
to sign the minute. If adjournments take place during the trial,
these can be noted on the face of the proceedings, at the conclu-
sion of each day's proceedings.
The adjournment may be either before or during the hearing,
and, (a) it is in the discretion of the justice; (b) it must be to a
certain time or place; (c) to be then appointed and stated in the
presence and hearing of the party or parties or of their respective
counsel, solicitors or agents, then present; (d) but no such ad-
journment shall be for more than eight days. The eight days
should be computed from and exclusive of the day of the ad-
journment. E. V. Collins, 14 0. E. 613.
If the accused asks for an adjournment beyond the eight days
and attends upon the adjourned hearing and takes his chances of
a dismissal on the evidence, he is estopped from afterwards urg-
ing a want of jurisdiction because of the irregular adjournment.
R. V. Hefeman, 13 0. E. 616, disapproving E. v. French, 13 0.
E. 80. See also E. v. Miller, 15 C. C. C. S7. The result will be
the same if the accused consents to the longer adjournment. E.
V. Eazen, 20 A. E. 633.
When the hearing is adjourned the justice may: (1) suffer the
defendant to go at large; (2) or commit him to prison; (3) or
discharge the defendant upon his recognizance with, or without,
sureties conditioned for his appearance at the time and place to
which the hearing is adjourned.
262 ADJOURNMENT IN DISCRETION OF JUSTICE.
As to the magistrate's discretion, see R. v. Irwing, (1908) 14
C. C. C.489. R. V. Pfister, 19 C. C. C. 92; R. v. Bmckard, 20 C.
C. C. 95; Ex parte Monahan, 17 Cl C. C, 53, and other eases cited
at page 255.
This discretionary power of adjournment should be exercised
according to the rules of reason, law and justice, and not by the
private opinion, or humour of the justice. See R. v. Bouchard,
20 C. C. C. 95.
In most cases where a justice of the peace is imperatively called
upon to act, and generally where a sta.tute directs the doing of a
thing for the sake of justice, or the public good, the word may is
the same as the word shall, and it is imperative on the justice to
proceed. R. v. Barlow, 2 Salk. 609. But see, contra, R. v. The
Bailiffs of Eye, 4 B. & Aid. 271.
If the accused does not appear personally, or by counsel, at the
time and place fixed at the adjournment, the justice may proceed
to the hearing, or further hearing, as if the accused were present.
And if the prosecutor or complainant does not appear the jus-
tice may dismiss the information with or without costs as to him
seems meet.
The adjournment must not be sine die, or without day, but to
a day certain and named in the presence of the parties, or their
solicitor, so as to enable them to be present. Even when the de-
fendant fails to appear to the summons, an adjournment of the
hearing must be to a time and place appointed and publicly stated
at the time of the adjournment. R. v. Smith, 16 C. C. C. 425.
See also Donoliue v. Recorders' Court, 18 C C. C. 182, and
Ex p. Giberson, 18 0. C C. 355. And this rule applies where an
adjournment is had for the purpose of delivering judgment. R.
V. Quinn, (1897) 2 C. 0. C, 153, and see R. v. Morse, (1890) 22
N. S. R. 298, although, in that case, the time fixed need not be
within the eight days. R. v. Hall, 12 P. E. 142 ; R. v, Alexander,
17 P. R. 458; Plante v. Cliche, 17 C. 0. C. 43, 20 C. C. 0. 186.
Where the defendant appeared before the magistrate and
pleaded not guilty to a charge of selling liquor without a license
and asked for an adjournment which was refused: — Held, that
the conviction should be quashed on the ground that, when the
defendant denied that he was guilty but required reasonable time
to produce other witnesses who could probably be speedily pro-
cured, reasonable time should be allowed him. A defendant should
be duly summoned and fully heard. R. v. Lorenzo, (1909) 14 0.
ADJOURNMENTS OP HEARING, 263
W. E. 1038, 16 C. a 0. 19; but see R. v. Major, (1909) 14 0.
W. E. 1111. B. V. WilHns, 17 O. C. C. 20, and Ex parte Giher-
son, supra.
On a motion to quash a conviction for selling liquor without a
license on the ground that the magistrate had refused the defend-
ant an adjournment, it was held that the evidence shewed that the
defendant had been given a fair trial and that any further delay
would not have assisted the defendant. Motion refused. R. v.
Lorenzo, supra, distinguished. R. v. Luigi, (1909) 14 0. W. K.
1041, 16 C. 0. 0. 25. See also Ex parte Le Bel, 16 C. C. C. 363.
Where an adjournment is made at the close of the hearing for
the purpose of delivering judgment, the justice is not confined to
the limit of time mentioned in sec. 722, but may adjourn for a
longer period, but such adjournment must be to a day certain and
fixed, and in the presence of the parties, so that they may be pre-
sent when tne decision is given, otherwise the accused might be
deprived of his right of appeal. See R. v. Hall. 12 P. E. 142 : B.
V, Alex'Mder, IV (). E. 458, and Plante v. Cliche, supra.
But, if counsel for the complainant and for the accused agree
that judgment may be reserved without fixing a date for same,
other than that the decision shall be given within a week and shall
be notified to the respective counsel, and the magistrate acquiesces
in, and conforms to, such arrangement, he does not thereby lose
jurisdiction, and a conviction made within the week should not be
set aside. B. v. McKenzie, 17 C. C. C. 372.
As to waiver of right to adjournment on amendment of the
information, see B. v. Clarice, (1906) 12 C. C. C. 485.
The accused was summoned for the next day, when the charge
was amended as to the date of the offence (for selling liquor with-
out a license). Held, that he was entitled to an adjournment
without being put on terms of paying the costs of the day and
that the refusal of the adjournment was a denial of his right to
make full answer and defence (Code, sec. 715). B. y. Farrell,
12 0. C. C. 524.
If the accused appear at the time and place mentioned in the
summons, and the justices shall not attend, he is not to go away,
but must wait during the remaining part of the day, for many
things may happen to hinder the justices' immediate attention.
1 Burns' Justice, p. 1131, and see B. v. ^Yipper, (1901) 5 C. C. C.
17.
264 ADJOURNMENTS — ^BAIL ON REMAND.
In other words, the accused should attend at the time and place
mentioned, and, if the Court is sitting, wait till his case is called.
Or, if the Court is not sitting, he should make inquiry and as^'er-
tain when the justice will sit, and wait till the Justice arrives-
In the absence of the magistrate, the clerk of the Court has no
power to adjourn the hearing of a complaint. Pare v. Recorder
of Montreal, (1905) 10 C. C. 0. 295.
After hearing all the evidence in support of the charge, the
defendant should be called upon for his defence, and the magis-
trate is bound to hear any relevant evidence tendered by him. B.
V. Holland, 37 U. C. R. 214; R. v. Sproule, 14 0. R. 375; R.
V. Nunn, 10 P. E. 395; R. v. Meyer, 11 P. E. 477.
Besides protesting against and commenting on the validity, or
effect, of the evidence tendered against him, the accused may de-
fend himself by proving that he is within some proviso, or excep-
tion, which excuses or justifies the fact charged, or that the act
complained of was done under an asserted authority, or pursuant
to a bona fide claim of right of property, for, where the title to
property comes in question, the exercise of a summary jurisdic-
tion by justices of the peace is generally ousted. R. v. Bumaby,
1 Salk. 181 ; and see sec. 709, supra.
Bail on Remand.
If the magistrate refuses to grant bail on adjourning the hear-
ing, a Judge of a Superior Court may do so. R. v. Yincent, 22
C. C. C. 98.
The consent of tlie accused to an adjournment for a period
exceeding eight days was a waiver of the irregularity and the
sureties on the bail bond could not complain or take advantage
of it, as it had been expressly given for the longer adjournment.
Re Burns' Bail, 17 C. C. C. 292.
Excluding Witnesses.
In many cases, it may be proper to examine witnesses apart
from the others, and for that purpose to require witnesses to with-
draw during the examination.
On the application of either party, the Oourt may direct that
all the witnesses but the one under examination shall leave the
Court. And this right may be exercised by the justice at any
time, but it is most usual to be asked for and exercised at the
DEFECTS AND OBJECTIONS TO INFORMATIONS, &C. 265
commeiiceinent of the hearing. See E. v. Murphy, 8 C. & P. 297,
and Southey v. Nash, 7 C. & P. 632, and p. 206, supra.
Defects and Objections.
As to this subject, see sec. 723 of the Code, printed at p. 133,
supra, and the remarks and cases following, also sees. 669 and 670.
as to irregularities and variations, printed at p. 185, supra, and
the cases there cited. . .
Although, bj sub-sec. 3 of sec. 723, the description of any
offence in the words of the Act, or of any order, by law, regula-
tions or other document creating "the offence, or any similar words,
shall be sufficient in law: Smith v. Moody, [1893] 1 K. B. 56;
yet, when a statute, in describing an offence, makes use of general
terms which will include a variety of circumstances, it is. not
enough that the information should follow the very words of the
statute, but it is necessary to state what particular act prohibited
has been committed, or what particular act enjoined has been
omitted. B. v. Beckwith, 7 C. C. O. 450, and see also Smith v.
Moody, supra.
Variance or Defect in Information, Etc.
724. No objection shall be allowed to any information, complaint,
summons or warrant for any alleged defect therein, in substance or in
form, or for any variance between such information, complaint, summons
or warrant and the evidence adduced on the part of the informant or
complainant at the hearing of such information or complaint.
2. Any variance between the information for any offence or act punish-
able on summary conviction and the evidence adduced in support thereof
as to the time at which such offence or act is alleged to have been com-
mitted, shall not be deemed material if it is proved that such information
was, in fact, laid within the time limited by law for laying the same.
3. Any variance between the information and the evidence adduced
in support thereof, as to the place in which the offence or act is aUeged
to have been committed, shall not be deemed material if the offence or act
is proved to have been committed within the jurisdiction of the justice by
whom the information is heard and determined.
4. If any such variance or any other variance between the informa-
tion, complaint, summons or warrant, and the evidence adduced in support
thereof, appears to the justice present and acting at the hearing to be such
that the defendant has been thereby deceived or misled, the justice may,
upon such terms as he thinks fit, adjourn the hearing of the case to some
future day.
This provision does not extend to a case where the informa-
tion has been laid, and the party summoned, for an offence, and
the justice has convicted him of another and different offence and
under a different Act of Parliament. Martin v. Pridgeon, 28 L.
J. M. 0. 179: B. v. BricUall, 33 L. J. M. C. 156.
J
266 VARIANCES BETWEEN INFORMATION AND EVIDENCE.
But, where an information was laid under 4 Geo. IV, ch. 34,
sec. 3, against the defendant for unlawfully absenting himself
from the service, and alleged a contract " with B. and others,"
and at the hearing it appeared that " B. and others " constituted
an incorporated company, this was held to be a variance cured
by a similar section, 11 & 12 Vic, ch. 43, sec. 1; Whittle v. Frank-
land, 31 L. J. M. C. 81, 2 B. & S. 49.
The misstatement or omission of any material averment in the
information is not cured by any statement in the evidence speci-
fied in the conviction, for the defendant can be convicted only of
the charge in the information, and that must be sufficient to sup-
port the conviction, the evidence being held to prove only and not
to supply the defects in the information. R. v. Wheatman, 1
Doug. 345.
Where a clerical error is manifest on the face of the document,
it will be read as it ought to have stood. R. v. WxLliams, 21 L. J.
M. C. 150.
If, on the hearing, it is objected that the information discloses
two offences, the prosecutor may be required to elect on which
charge he will proceed. Rodgers v. Richards, [1892] 1 Q. B.
555, 66 L. T. 261, and see Bartholomew v. Wiseman, 56 J. P.
455.
An information on its face purported to be the information of
B., whereas it was signed and sworn to by McM. At the hearing,
the magistrate erased B.'s name and wrote over it the name of
McM., who had signed and sworn to the information. The de-
fendant's counsel raised the objection that the information should
be resworn; this was not done. The objection, however, was noted
by the magistrate. The defendant pleaded not guilty, the trial
proceeded and he was convicted. On an appeal from a decision
granting a writ of certiorari to remove the conviction, it was held
that the information was bad ; it should have been resworn. Held,
further, that, having stated his objection, and having caused the
same to be noted, there was nothing further for the defendant to
do, he being under arrest, and by proceeding with the trial and
cross-examining witnesses he did not thereby waive the objection
to the information not being re-sworn. R. v. McXutt, (1896) 3
C. C. C. 184. See further the chapter on information and com-
plaint and cases there cited, and notes to sec. 710, supra.
A warrant of commitment under a summary conviction must
shew on its face that the justice Ai^^ho issued it had authority at
the place where the offence occurred, and an objection such as this
CERTAIN DEFECTS NOT TO VITIATE PROCEEDINGS. 367
is not cured by sec. 846 (now 723). R. v. Gow, (1906) 11 C. C.
C. 81.
Certain other Defects not to Vitiate Proceedings.
725. No information, summons, conviction, order or other proceeding
shall be held to charge two offences, or shall be held to be uncertain on
account of its stating the offence to have been committed in different modes,
or in respect of one or other of several articles, either conjunctively or dis-
junctively, for example, in charging an offence, under section 533, it may
be alleged that " the defendant unlawfully did cut, break, root up and
otherwise destroy and damage a tree, sapling or shrub " ; and it shall not
be necessai'y to define more particulai'ly the nature of 'the act done, or to
state whether such act was done in respect of a tree, or a sapling, or a
shrub.
See B. V. White, (1901) 4 0. 0. C. 430; It. v. McDonald.
(1898) 6 C. O. C. 1; E. V. Bnne, (1904) 8 C. 0. C. 54; R. v.
Brouse, 21 C. C. O. 17.
Conviction or Order Removed by Certiorari not to be Held
Invalid for Irregularity.
It should be useful to print here the provisions of sec. 1124
of the Code on this subject as follows: —
1124. No conviction or order made by any justice, and no warrant
for enforcing the same, shall, on being removed by certiorari, be held invalid
for any irregularity, informality or insufficiency therein, if the Court or
Judge before which or whom the question is raised, upon perusal of the
depositions, is satisfied that an offence of the nature described in the
conviction, order or warrant, has been committed, over which such Justice
has jurisdiction, and that the punishment imposed is not in excess of
that which might lawfully have been imposed for the said offence : Pro-
vided that the Court or Judge, when so satisfied, shall, even if the
punishment imposed or the order made is in excess of that which might
lawfully have been imposed or made, have the like powers in all respects
to deal with the case as seems just as are by section seven hundred and
fifty-four conferred upon the Court to which an appeal is taken under
the provisions of section seven hundred and forty-nine.
2. Any statement which, under this Act or otherwise, would be
sufficient if contained in a conviction, shall also be sufficient if contained
in an information, summons, order or warrant.
Adjudication.
726. The justice, having heard what each party has to say, and the
witnesses and evidence adduced, shall consider the whole matter, and,
unless otherwise provided, determine the same and convict or make an
order against the defendant, or dismiss the information or complaint, as
the case may be.
The judgment of the justice should be confined to the subject-
matter of the complaint laid before him. R. v. Soper, 3 B. & C.
857.
268 ADJUDICATION UPON THE EVIDENCE;
The evidence must support the charge as laid in the infonna-
tion, and the justice cannot be required to hear evidence which
ought not to affect his decision in the matter before him. R. v,
Minshull, 1 N. & M. 277.
If an information is laid for sureties to keep the peace, the
justice haa no jurisdiction to convict the defendant of an assault,
as well as to order him to find sureties to keep the peace upon evi-
dence of an assault, as well as threats, when tne informant pro-
tests againstthe justices dealing with the caae as one of assault.
n. V. DenyJlQJj.J. M. C. 189. "^
It is otherwise if the information is laid for assault or other
offence and the defendant is convicted, as in that event the justice
may, in lieu, or in addition to any other sentence, reqAiire the
defendant to give security, or enter into hie own recognizance to
keep the peace for twelve months. See sec. 748, post.
The degree of credit due to the evidence on either side is en-
tirely for his consideration, and a justice of the peace in summary
proceedings is substituted for a jury, so far as relates to the con-
viction, that is, to the finding of the party guilty, or not guilty.
He should judge, therefore, of the guilt or innocence of the de-
fendant from the evidence in the same manner as if he were upon
a jury; if the e\idence be such as to leave no reasonable doubt
upon his mind of the guilt of the defendant, he should convict
him, if otherwise, he should acquit him. 1 Burns' Justice, p.
llJtZ; R. V. Reason, 6 T. R. 326; R. v. Smith, 8 T. E. 590.
If any reasonable doubt exists in the mind of the magistrate,
the party charged is entitled to the benefit of that doubt. Such
cases it is to be recollected differ very materially indeed from
those where mere civil rights are concerned, and where the mere
preponderance of evidence may be suflBcient to decide the question.
5 Stark. Ev. JfU.
It is sufficient to authorize a conviction that there is such evi-
dence before the justice as might in an action, or on an indict-
ment, be left to a jury, and the Court of Queen's Bench when the
conviction is brought before it will not examine further to see
whether the conclusion drawn by the justice be, or be not, the
inevitable conclusion from the evidence. R. v. Davis, 6 T. R. 178.
And if the justices think fit to dismiss the charge, althougn
there appear prima facie ground for a conviction, their acquittal
cannot be questioned, since no otlier Court can judge of the credit
due to witnesses which it did not hear examined. R. v. Reason,
6 T. R. 326 ; R. v. Ridgwuy, 5 B. & Aid. 527.
ADJUDICATION AND CONVICTION. 269
The magistrate has no right to act upon any personal know-
ledge he may be supposed to have — he must act upon evidence
adduced before him. Taylor, O.J,, at p. 202, in B. v. Herrell,
(1898) 12 M. E. 198.
As to the suggested personal knowledge of the magistrate, that
could not be acted on any more than the magistrate, seeing Herrell
make a sale of intoxicating liquor, could turn around and convict
him of doing so without taking evidence. There should be sworn
evidence of a witness who could be cross-examined and whose de-
positions could be taken down in writing. Killam, J., p. 210,
ibid.
When the justice dismisses the case, he may, when required,
make an order of dismissal in form 37, and shall then give the
defendant a certificate of dismissal in form 38. See sec. 730, post.
Two justices holding summary proceedings must act together
throughout. After adjournment, the justices met again upon a
conviction, and drew up what they intended to be a formal con-
viction and signed it; but, when the day which they had appointed
for delivering judgment came, only one of the justices attended
and, producing the paper they both had signed, he read it as the
conviction of both magistrates, " I do not think that is acting —
as required by the statute — together to the end,'' Gregory, J,, at
p. 190, in Ex parte McCorquindale, 15 C, C, 0, 187,
Conviction,
727. If the justice convicts or makes an order against the defendant,
a minute or memorandum thereof may then be made, for which no fee
shall be paid, and the conviction or order, in such case, shall afterwards
be drawn up by the justice on parchment or on paper, under his hand
and seal, in such one of the forms of conviction or of orders from 31 to
36 inclusive as is applicable to the case or to the like effect.
Minute of Conviction.
Notice that the minute, or memorandum, " may " be made,
so that it is not imperative that it should be made. When there
is a complete minute made, the formal conviction should conform
to it: Ex parte Carmichael, 8 C. C. C. 19; R. v. Kirwin, 20 C.
C, C. 181. But, when there is no minute, the conviction itself,
if made at the time, is a sufficient compliance with sec. 727: Ex
parte Flanagan, 2 C. C. C. 513 ; Ex parte Van BuskirJc, 13 C. C. C.
234; and the entry by the magistrate of the words "3 months,
100 or 3 months " on the back of the information is not con-
clusive to shew that he did not award hard labour. R. v. Gratton,
17 C. C. C. 324. See also R. v. Dagenais, 18 C. C. C. 287.
270 MINUTE OF CONVICTION.
The memo, can be in the following form: —
"Judgment. Fined ($10), and ($2.35) costs of the Court, or
in default of payment days (or months) imprisonment
in the gaol at H. L." (Hard labour).
" John Brown,
" J.P."
If the penalty is to be recovered by distress, say " or in default,
distress."
All that is required is a minute or memorandum signed by the
justice, which will contain sufficient information upon which to
base the order, or conviction, afterwards drawn up, and to indi-
cate the true adjudication of the justice.
It was held that, where in the minute of adjudication the costs
were fixed at $5.20, and the conviction required the defendant to
pay $5.27 costs, the conviction was bad. E. v. Walsh, 2 0. E. 206.
Held that, inasmuch as the conviction and warrant of commit-
ment varied from the minute of adjudication in that they stated
that the defendant should be kept at hard labour, the minute not
containing such, the variance was fatal and the conviction quashed.
Ex parte Carmichael, (1903) 8 C. C. C. 19. See also B. v.
Kirwin, supra. These cases are distinguished in B. v. Gratton,
supra.
The minute of conviction should state the adjudication of the
justices both as to the amount of the fine and the mode of enforc-
ing it, whether by distress, or imprisonment, so as to be a com-
plete judgment in substance. R. v. Perley, (1885) 25 N. B. K.
43.
The minute of adjudication did not contain any statement as
to the term of imprisonmert. Conviction quashed. Ex parte
Hill (1891) 31 N. B. R. 84.
A variance between the minute and the conviction whereby the
minute omitted any reference to the costs of distress and convey-
ing to gaol will not invalidate the formal conviction, because such
costs are obligatory when a summary conviction imposes a fine,
and awards distress and imprisonment in default of distress. B.Y.
Beagan (No. 2), (1902) 36 N". S. Eep. 208, and 6 C. C. C. 56,
and notes thereto.
A conviction which is in proper form will not be quashed by
reason of its being founded upon a minute of adjudication which
does not disclose an oflFence in law, if the Court is satisfied upon
perusal of the depositions that the offence for which the formal
MINUTE OF CONVICTION, 271
conviction was made was in fact committed. B. v. Whiffin, (1900)
4 C. C. C. 141.
The justice may correct in his minute any mistake he made in
computing costs, although he had previously announced the incor-
rect amount. The minute need not contain everything necessary
to a perfect conviction. R. v. McDonald, 26 N. S. E. 94, per
KiTCHiE^ J., at p. 102.
A minute of conviction for selling liquor without a license in
contravention of B. S. 0., ch. 245, stated that, in default of pay-
ment of the fine and costs imposed, the same was to be levied by
distress, and in default of distress imprisonment for three months.
The section (72) on which the conviction took place did not auth-
orize distress, but only imprisonment on default in payment, and
the Court held that the fact of minute directing distress did not
prevent the justice from draiwing up and returning in answer to a
certiorari a conviction, omitting the provision as to distress. This
being done, the amended conviction was held good under sec. 105
of E. S. 0., ch. 245. R. v. Hartley, 20 0. E. 481, and see R. v.
Richardson, 20 0. E. 514; R. v. Hazen, 20 A. E. 633; R. v. Mc-
Ann, 4 B. C. E. 587.
When the adjudication did not provide for distress, but directed
imprisonment in default of payment of the fine and costs, it was
held that a conviction could not be made directing distress, and on
default imprisonment, and that a conviction which did not follow
the adjudication was invalid. R. v. Cantillon, 19 0. E. 197.
Where a minjite of conviction mentioned no definite time ior
payment of the penalty, it was held that the conviction must be
taken to require payment forthwith. R. v. Butler, 32 C. L. J. 594,
and see R. v. Caister, 30 U. C. E. 247.
The minute of conviction need not state the amount of costs
where costs are awarded. Unless the defendant requires it for the
purpose of payment, it is sufficient that the amount is stated in the
conviction. Ex p. Porter, 28 N. B. E. 587.
" Then there is a variance between the minute of conviction
and the conviction. The' minute provides for payment of the ' costs
of conveying to gaol,' and the conviction for the ' costs and charges
of the said distress and of conveying' to gaol. In my opinion, it
is unnecessary for the magistrate to insert the provision asi to the
costs of distress and conveyance to gaol in ihe minute. The statute
fixes that and the magistrate had no discretion to adjudicate in
regard to it, or power to deal with it. He need insert nothing, I
272 VARIANCE BETWEEN MINUTE AND CONVICTION.
think, which the law supplies as a consequence of the sentence.
The provision is properly set out in the conviction; and, as ite
insertion in the minute was unnecessary, the variance is imma-
terial." Graham, E.J., at p. 132, in B. v. Yantassel (No. 1),
(1894) 5 C. 0. C. 128.
■ The conviction provided for the imprisonment of the defend-
ant for forty days "unless the said sums (the penalties and costs
of conviction), and the costs and charges of the said distress, shall
be sooner paid." The minute of conviction, after providing for
the forty days' imprisonment, added, "unless the said sums shall
be sooner paid." The conviction, having omitted the provision
as to costs of conveyance to gaol, was held to be bad. R. v. Van-
tassel (No. 2), (1894) 5 C. C. C. 133, and see Ex parte Whalen,
29 N. B. R. 146.
At the conclusion of the case, the magistrate wrote, " I adjudge
the defendant to pay a fine of twenty dollars and costs in default
to thirty days' gaol, liqiUor to be forfeited to His Majesty, and sold
to wholesale dealers, proceeds to go towards public hospital," but
he inserted " one month " in the conviction, instead of thirty
days.
Held, a suflBcient minute of conviction, if the justice had power
in law to make it.
The statute under which the conviction was made authorized
imprisonment for a period not exceeding " one month." It was
argued that thirty days might exceed a month, because the month
of February has ordinarily twenty-eight days. Held, nothing in
this argument, and the conviction was sustained. Ex parte Rogers,
(1903) 7 C. C. C. 314.
Drawing up the Conviction or Order.
A conviction may be described as a record containing a
memorial of the proceedings had under the authority of a penal
statute before justices of the peace, or commissioners, duly
authorized to receive an information and proceed to judgment.
Foley, 8th ed., 182.
The general requirements of a conviction are that it should be
precise and certain, and shew that the convicting magistrate has
power to convict, that the requisite proceedings preliminarj^ to the
conviction have been duly taken, and that the defendant has been
founS guilty of the offence charged against him.
REQUIREMENTS OF CONVICTIONS. 273
A warrant of commitment after sentence of imprisonment is
not invalid because it was issued and acted on before the formal
conviction was drawn up. B. v. Langlois, 20 C. O. C. 183.
The general qualities of a conviction in substance are, first,
that it be full and correct, and, secondly, as the whole jurisdiction
in summary proceedings is founded upon and solely derived from
special Acts of Parliament, it is fundamentally required, in a con-
viction for any offence, that the directions of the particular statute
relative to that offence should appear upon the face of it to have
been substantially complied with, both as regards the subject-
matter of the offence being clearly brought within the meaning
of the Act and also the final judgment. Foley, 8th ed., 195.
And, if the charge falls short of the legal description of the
offence, the omission is not cured by any allegation of its being
done unlawfully or fraudulently, or the like, or by stating that it
was against the form of the statute; for the last allegation is no
more than a legal inference which must be supported by the pre-
mises, although the meaning of the charge was understood by the
party charged, and the charge was in a form used time out of
mind. B. v. Jukes, 8 T. R. 536; Be Oeswood, 2 E. & B. 952;
Fletcher v. Calthrop, 6 Q. B. S80, 889; Ex parte Hopkins, 61 L.
J. Q. B. 240.
The charge should be positive and certain, in order that the
defendant may be protected from a second accusation in respect
of the same fact, and in order also that the judgment may appear
appropriate to the offence.
An offence cannot be charged disjunctively, or in the alter-
native in a conviction. 1 SaTk. 372; 2 Hawk., c. 25, s. 59. Though
it may perhaps be so in an order. B. v. Middlehurst, 1 Burr. 399.
The charge in a conviction must be certain, and must be so
stated as to be pleadable in a second prosecution for the same
offence. B. v. Haggard, (1870) 30 U. C. R. 152.
A conviction for unlawfully practising medicine without being
registered is bad, unless it specifies the particular act or acts con-
stituting the alleged practising. B. v, Coulson, 24 0. R. 246, 1
C. C. C. 114.
A conviction for doing worldly labour on Sunday contrary to
the Lord's Day Act is void for uncertainty unless the acts which
constitute the offence are specified. B. v. Somers, (1893) 1 C. C.
C. 46, 24 0. R. 244.
c.c.p. — 18
274 EXAMPLES OF INVALID CONVICTIONS.
A conviction under sec. 517 (f) of the Code for doing an un-
lawful act in a railway yard, in a manner likely to cause danger
to life, or person, is bad for uncertainty, if it does not disclose the
nature of the unlawful act E. v. Porte, (1908) 14 C. C. C. 238.
" The conviction here is bad, because it does not specify the
particular act, or acts, which constituted the alleged practising of
medicine. . . . But the magistrate had jurisdiction, and we
ought, therefore, to look at the evidence to see if an offence was
committed, and, if so, we should amend the conviction; but, look-
ing at all the evidence, we cannot come to the conclusion that an
offence was committed of the nature specified in the conviction."
Armour, O.J., at p. 117, in B. v. Coulson, supra. See also Re
Donnelly, 20 C. P. 165, and R. v. Whalen,. (1900) 4 C. C. C. 277.
The disclosure in the evidence of the defendant of several
illegal sales made on the same day will not invalidate a conviction
thereon for illegally selling liquor, although the conviction does
not specify to which particular sale or sales the same relates. R.
V. Moore, (1898) 2 C. C. C. 57.
A conviction for " unlawfully procuring or attempting to pro-
cure" a girl to become a prostitute is void for duplicity and for
uncertainty. R. v. Gibson, (1898) 2 C, C. C. 302.
A conviction for using profane language on a public street is
invalid unless the words complained of are set out therein. R. v.
Smith, (1899) 2 C. C. C. 485.
A conviction for wilful injury to property did not specify either
the nature of the property injured, or the nature of the injury
thereto. Held, void for uncertainty and prisoner discharged.
R. V. Leary, (1904) 8 C. C. C. 141. See also Smith v. Moody,
[1903] 1 K. B. 56.
A village by-law provided that all pool-rooms in tiie village
should be closed from 8.30 p.m. every Saturday until 7 a.m. the
following Monday, and should remain closed on every other day
from 10 p.m. until 6 a.m. the following day. The defendant was
convicted for that " he did refuse to close a pool-room occupied by
him in the village of Carman after the hour of half-past eight,
contrary to the by-law of the village in that behalf." Held, the
conviction bad, and should be quashed on the following grounds:
1. It did not state that the pool-room had been kept open after
half-past eight in the afternoon. 2. It did not state that it was
on a Saturday, or Sunday, the offence was committed: for, on
any other day the pool-room might have been lawfully kept open
until 10 o'clock p.m. 3. The conviction did not give the date
EXAMPLES OF INVALID CONVICTIONS. 275
when the offence had been committed, and, for all that it stated,
it might have been before the by-law came into operation, or more
than six months before the information was laid. In re Fisher
and the Village of Cabman, (1905) 15 M. E. 475, and 9 C. C.
C. 451.
If the information charges more than one offence, all but one
should be struck out upon objection being taken; where the objec-
tion was overruled and evidence taken on the several charges until
the conclusion of informant's case, when all but one charge was
abandoned, a conviction upon that one was held invalid and
quashed on appeal. R. v. AusHn, (1905) 10 C. C. C. 34.
The information was for "keeping liquor for sale," the sum-
mons issued and served on the defendant was for " selling li<iuor
contrary to law," and, the defendant not appearing, after hearing
evidence for the prosecution, the defendant was convicted for
"keeping liquor for sale." Held, conviction bad because the de-
fendant had never been summoned to answer the charge of which
he was convicted. Ux parte Melanson, (1908) 13 0. C. C. 251.
A summary conviction for being "a loose, idle person or
vagrant," without specifying in what the vagrancy consisted under
sees. 207, 208 (now 238, 239), is clearly bad. ''You might as
Avell charge a man generally with being a thief; the accused was
entitled to know under what sub-section of sec. 207 (now 238)
he was charged, that is, what the facts were on which the prosecu-
tion relied." Huntee, C.J., in E. v. McCormack, (1903) 7 C. C.
C. 135, 9 B. C. E. 497, but see E. v. Young, (1905) 12 C. C. C.
109, and E. v. Demetrio, 20 C. C. C. 316.
A summary conviction for vagrancy is void for multifarious-
ness, if it charges a defendant with both, (a) obstructing passen-
gers in the street, and (b) with causing a disturbance in the
street, these being separate offences under clauses (a)' and (b) of
sec. 238 of the Code.
And a conviction for causing a disturbance in a public place
and being thereby a vagrant, must specify one of the means of
causing the disturbance which are specified in clause (f), i.e.,
screaming, swearing or singing, or by impeding or incommoding
peacable passengers. E. v. Code, (1908) 13 0. C. C. 372.
In Smith v. Moody, [1903] 1 K. B. 56, Lord Alverstone, C.J.,
at p. 60, said : " The second objection to the conviction is that it
does not sufficiently specify the property of the respondent which
the appellant is alleged to have injured, the only words used being
' did injure the property of ' the respondent. I have come to the
276 VAGRANCY.
conclusion that this objection is good and must prevail. I was
at first inclined to think that the defect was cured by sec. 39 of
the Summary Jurisdiction Act, 1879, which provides that *the
description of any offence in the words of the Act creating the
offence,' or in similar words, shall be sufficient in law, but on
further considering the question, which is undoubtedly one of
importance, it seems to me that it could not have been intended
by that section to do away with the old rule of criminal practice
which requires that fair information and reasonable particularity
as to the nature of the offence must be given in indictments and
convictions. All that is meant by sec. 39 is, that the offence itself
need only be described in the words of the statute creating it"
Vagrancy.
A wilful refusal by the father to support his illegitimate in-
fant child, when able to do so, is an offence under the vagrancy
sections of tlie Code (23S, 239). R. v. Barthos, 17 C. C. C. 459.
As to the evidence required for proof of vagrancy in different
cases, see R. v. Davidson, 8 M. E. 325; R. v. Eolotyla, 21 M. R.
197, 19 C. C. C. 25; R. v. Munroe, 19 C. C. C. 86.
It is an essential ingredient of the offence of vagrancy for
a prostitute wandering in the public streets and not giving a satis-
factory account of herself, that the officer should request an ex-
planation from the woman, and the onus is on the Crown to prove
both the request and the failure to give a satisfactory explanation.
The conviction, which omitted to set out that the accused was
asked to give an account of herself before arrest, was held bad by
Craig, J., in R. v. Harris, 13 C. C. 0. 393, and by Macdonald,
X, in R. V. Pepper, 15 C. C. C. 314.
But these cases were expressly dissented from by Walsh, J.,
in Re Brady, 21 C. C. C. 123, where it was held, that the absence
from the conviction of the allegation that the woman had been
asked to give an account of herself was not fatal to its validity.
Notwithstanding the provision of sec. 723 (3) of the Code
that the description of any offence in the words of the Act creat-
ing the offence, or any similar words, shall be sufficient in law,
it is still necessaiy to specify in the conviction whatever the
accused has done which brings him within the words of the statute.
Smith V. Moody, supra, and CotterUl v. Lempriere, 24 Q. B. D.
639.
" I think that sec. 39 of the Summary Jurisdiction Act of
1879, which provides that it is sufficient to describe the offence in
EXAMPLES OF INVALID CONVICTIONS. 277
the words of the statute creating the ofEence, cannot be supposed
to have heen intended to break down the very important rule
which has prevailed now for at least 200 years in the administra-
tion of justice with respect to the sufficiency of particulars in a
conviction. I do not think for a moment that it was intended to
relieve persons who had to draw up convictions from inserting
anything which was necessary as an ingredient of the offence of
which the particiilar defendant had been found guilty. When one
comes to the description of the offence itself, then it is quite suffi-
cient if it is described in the terms of the statute, however general
they may be. At the same time, the old rule must prevail that,
whatever is necessary to shew that the person convicted has done
something which brought him within the words of the statute,
must still be specified. It is not that there is any insufficiency in
the desciiption of the offence itself. The description of the
offence follows the words of the statute; but there is insufficiency
with respect to the ingredients of the offence which the appellant
has committed and for which he has been convicted. I think
specific information as to the injury to property ought to have
been given in the conviction." . Wills, J., in Smith v. Moody,
supra.
If a statute gives summary proceedings for various offences
specified in several sections, a conviction is bad which leaves it
uncertain under which section it took place. Charter v. Greame,
13 Q. B. 216.
A conviction alleged in the words of the statute that the de-
fendant unlawfully and maliciously committed damage, injury
and spoil to and upon the real and personal property of the Long
Point Company. Held not sufficient, because it was not alleged
what the particular act was which was done by the defendant that
constituted the damage complained of. R. v. Spain, 18 0. E. 385.
Where there is no provision making it sufficient to use the
words of the statute, a conviction is bad for uncertainty, if it does
not specify the act or acts which constitute the offence under the
statute. B. v. Somers, 24 0. E. 244.
A conviction in the form prescribed by the Criminal Code will
not be held bad because it also contains recitals shewing certain
adjournments of the hearing before the justice, but not shewing
that no adjournments had been made for a longer period than the
eight days allowed, although more than three months had elapsed
from the commencement to the end of the proceeding. It is not
necessarilv to be inferred from the statement of certain facts which
278 EXAMPLES OF INVALID CONVICTIONS.
were not required to be stated, that other circumstances necessary
to the jurisdiction of the magistrate did not exist. Proctor v.
Parker, (1899) 12 M. R. 528, 3 C. O. C. 374.
The description of the offence must at least be as particular as
that used by the statute. Any words which do not sufficiently
describe the offence will not do, but a variation from the precise
words is not fatal, if the words are such as bring the case within
the plain meaning of an Act of Parliament.
As a general rule where an Act in describing the offence makes
use of general terms which embrace a variety of circumstances, it
is not enough to follow in a conviction the words of the statute,
but it is necessaiy to state what particular acts prohibited had
been committed.
Particular sums, or quantities, must be specified in the con-
viction.
A defendant was convicted for refusing to account and pay
over the money received by him as a collector. The conviction was
quashed because no particular sum was specified nor the times
when the money was charged to be received, so as to enable him
to defend himself upon a second charge. The Court said it was
one entire nonfeasance charged both in the conviction and com-
mitment and they would not sever them. R. v. Catherall, 2 Stra.
900.
In a conviction for taking and destroying fish, the number or
quantity of fish taken, killed or destroyed by the defendants should
be stated. R. v. Marshall, 2 Keb. 594.
A conviction under the Fisheries Act, Canada, which merely
specified the offence as " illegal fishing," is bad for uncertainty.
Ex parte Dixon, (1903) 7 O. C. 0. 336.
In those cases where a magistrate is directed to award com-
pensation according to the injury, or to assess a penally by way
of damages, it is requisite that particulars as to quantities should
be enumerated in the conviction.
"In trespass, the nature and number of things ought to be
mentioned, and much more in a conviction where all imaginable
certainty is requisite." Ld. Holt, C.J., in B. v. Burnahy, 2 Ld.
Raym. 900.
An indictment for selling in unlawful measures divers qitan-
iities of ale, was held too general and bad on demurrer. R. v.
Gibhs, 1 Str. 497.
As to the manner of alleging the quantity of the article in
question, a conviction for buying a certain quantity of wheat, to
CONVICTION" rOE SEVERAL OFFENCES. 279
wit, fifteen bushels of wheat (contrary to the Lord's Day Act, 22
& 23 Car II., c. 12), has been held sufficiently certain. B. v.
Arnold, 5 T. E. 353.
Several Offences.
A conviction for two offences is bad. A conviction " for creat-
ing a disturbance and acting in a disorderly manner by fighting
on the street and breaking the peace contrary to the by-law and
statute in that behalf," held defective. And, if it impose imprison-
ment with hard labour in default of payment of the fine, and it
is uncertain whether it is made under the statute, or a by-law,
hard labour being unauthorized under the by-law, it will be bad.
R. V. WasMngion, 46 U. 0. E. 221.
A conviction for two several and distinct offences, but imposing
one penalty only, is bad where it does not appear for which offence
the penalty is inflicted. R. v. Gravelle, 10 0. E. 735.
Where a defendant was convicted for that he " did in or about
the month of June, 1880, on various occasions," commit the offence
charged in the information and a fine was inflicted '* for his said
offence," conviction held bad as shewing the commission of more
than one offence. R. v, Olennan, 8 P. E. 418.
But see R. v. Michaud, 17 O. C. C. 86, where it was held that
the prosecution may elect to treat various acts of obstruction of a
railway by placing pieces of iron on the rails in a manner likely to
wreck a train, the acts continuing for several weeks, as cumulative
acts forming one offence in law against sec. 517 of the Code, and
give evidence of all the acts at one trial.
See also notes to R. v. Michaud, supra, pp. 97-103, in which
the editor collects the cases as to duplicity, continuing offences and
as to whether any particular charge is for one or more offences.
Where the Consolidated Ordinance, ch. 89, sec. 102, N. W. T.,
provided that several offences may be included in the one informa-
tion and the magistrate adjudged the accused guilty of each offence,
and the Ordinance, sec. 106, also provided that convictions for
several offences may be made, although committed on the same
day. Held, it was not necessary that separate convictions should
be drawn up, but the fines may be imposed in and by the one con-
viction adjudging a forfeiture in respect of each offence, R. v.
Whiffen, (1900) 4 C. C. C. 141.
The Ordinance did not authorize imprisonment at hard labour
in default of payment of the fine, and in answer to a certiorari the
280 CONTIOTIONS MUST BE SEALED — NAMES.
magistrate returned an amended conviction omitting the hard
labour. Held that the conviction was not bad by reason of its
being at variance with the minute of adjudication which had im-
posed hard labour. Ibid. And see Simpson v. Lock, (1903) 7
C. C. C. 294.
CONVIOTIONS MUST BE UNDER SeAL.
A conviction must be under seal : In re Byer v. Plows, 46
U. C. E. 206; Bond v. Conmee, 15 0. E. 716, 16 A. E. 398. In
this latter case a paper purporting to be a conviction signed by the
magistrate but not imder seal was returned to a certiorari issued
in aid of a habeas corptis. Conviction was held to be a nullity as
it was not under seal. See also remarks of Ceaig, J., at p. 104, in
R. V. UEeureux, (1908) 14 C. C. C. 100.
In summary cases when the hearing is fixed at some place
distant from the residence of the defendant it might result in the
denial of justice; but, if there is jurisdiction in the justice who
tries the case, this Court will not interfere by prohibition. Deake^
J., at p. 83, in E. v. Chipman, (1897) 1 C. O. C. 81.
Names of the Parties.
When there are several offenders each must be specifically
named in the conviction. The omission of the Christian name of
any of them is fatal. In re McDonald Bros., 34 C. L. J. 475.
The name of the informant, or complainant, must appear on
Y the face of the conviction in some form. Hennesy v. Ossier, 8 U.
^ C. L. J. 299.
If the defendant pleads to an assumed name he cannot, after
conviction, object that it is not his real name. Ex p. Corrigan, 2
C. C. 0. 591.
The justices are not bound by the names contained in the in-
formation, but may draw up the conviction with what appear to
be the proper ones. ^Vhittle v. Frankland, 31 L. J. M. C. 81, 2
B. & S. 49.
If an offender refuses to give his name and it is not disclosed,
he may be described as a person whose name is unknown to the
justices, and identified by some fact, for instance that he is per-
sonally brought before them by a certain constable. R. v. ,
E. & E. 489.
NAMES, TIME AND PLACE. 281
If the name or names of the persons aggrieved are not known
it should be so stated; if known they should be accurately stated. Y^
2 Hale 181.
A summary conviction describing the defendant as " Mrs.
Morgan " was held bad. R. v. Morgan, 1 B. C. E, pt. I., 245.
The name and style of the magistrate, or justices, by whom the
conviction was made must be set forth in the conviction, so that it
may appear that they are justices of the county, or district, where
the offence is stated to have happened; this is necessary in order
that their jurisdiction may be shewn upon the face of the pro-
ceedings. See R. V. Walsh, 2 0. E. 206; Ex p. Bradlaugh, 3 Q.
B. D. 509 ; R. v Bradley, 17 Cox 739 ; and see R. v. Young, 5 0.
E. 184a; R. v. McGregor, 26 0. E. 115: R. v. AJcerman, 1 B. C. E.
pt. 1, 255.
Time and Place.
The conviction must specify the time and place of committing
the act complained of. The precise day need not be named, but
it will be sufficient if the fact be alleged to have happened between
such a day and such a day, provided the last of the days specified
is within the time limited. See R. v. Wallace, 4 0. E. 127 ; R. v.
Butler, 32 C. L. J. 594, and R. v. Adams, 24 K S. E. 559.
Alleging that the act was done at a certain place in the town-
ship of A. is sufficient, if a public Act shews that that township is
within the county for which the justice is appointed. R. v. Shaw,
23 U. C. E. 616 ; see also Ex p. Macdonald, 27 S. C. E. 683 ; R. v.
Oherlander, (1910) 16 C. C. C. 244, and R. v. Picard, 21 C. C. C.
250.
A conviction stated the offence to have been committed in the
county of Norfolk. The information charged the offence as in
the municipality of N'orth Cypress in the county of Norfolk in the
province of Manitoba. By statute the municipality of North
Cypress was in the county of Norfolk. In the absence of any
affidavit denying that the magistrate had jurisdiction, held, that
an objection that no offence within the province had been shewn
was untenable. But, costs unwarranted by statute having been
imposed, the conviction was held bad. Re Bihhy, (1890) 6 M. E.
472.
A conviction for keeping a house of ill-fame must name a place
at which the offence was committed, and it is not sufficient to
allege that the offence was committed at the city of Ottawa with-
282 TIME AND PLACE — NEGATIVING EXCEPTIONS.
out further description of the particular locality. The conviction
should describe the place in such a way as by street and number
that the particular house could be easily identified. R. v. Gyr,
12 P. K. 24.
A conviction was for keeping a house of ill-fame on the 11th
October and on other days and times before that day. Held suf-
ficiently certain as to time. The information described the parties
as of the township of East Whitby, and had " county of Ontario "
in the margin. It charged that they kept a house of ill-fame but
did not expressly allege that they did so in that township or
county. The evidence, however, shewed that the place at which
such house was kept was in East Whitby, in which the justice had
jurisdiction. Held suflBcient. R. v. Williams, 37 TJ. C. R. 540.
The defendant was convicted by the S. M. for the city of Hali-
fax of the offence of "keeping a disorderly house, that is to say,
a common bawdy house, on the 21st April, 1901, and on divers
other days and times during the month of April, 1901," and was
fined, &c. Held, dismissing application for habeas corpus, that the
offence as charged did not constitute more than one offence, and
that the word "keeping" implied a continuous offence. R. v.
Keeping, 34 N. S. E. 4^2.
An objection was taken to the conviction that on its face it was
for an offence committed between the 8th and 11th days of March,
1908 (the information was laid on the last named day), leaving
it uncertain whether the offence was committed before the informa-
tion was laid. " There is nothing in the point. The information
on which the conviction is made could not very well have reference
to an offence after the information was made." Barker, C.J.,
in Ex parte Wilson, (1908) 14 C. C. C. 32. But see upon this
point. R. V. Keeping, 4 C. C. C. 494.
Negativing Exceptions.
One of the most essential points to be carefully attended to in
describing the offence charged is, that every exception, excuse or
qualification which accompanies the description of the offence in
the enacting clause, be positively negatived.
This consideration would lead to a conclusion that it is neces-
sary to negative all the provisions annexed to the offence, whether
by the same or any other clause of the statute, as well as those in
the enacting clause. The rule however seems, as established in
NEGATIVING EXCEPTIONS IN CONVICTIONS. 283
practice, to be restricted to those of the latter description only.
Foley, 8th ed., p. 253.
The rule, therefore, and distinction resulting from these and
confirmed by the cases mentioned in the sequel, seem to be clear,
viz., that all circumstances of exception and modification, whether
applying to the offence or to the person, that are either originally
introduced into, or incorporated by reference with, the enacting
clause, must be distinctly enumerated and negatived; but that
such matters of excuse as are given by other distinct clauses or
provisoes need not be specifically set out, or negatived. Foley,
8th ed., p. 256.
It is not necessary to notice the proviso merely because it is
placed in the same section of the printed Act, unless it is also a
part of the enacting sentence, for statutes are not divided into
sections upon the rolls of Parliament. It is immaterial whether
the exception be in another section, or in another Act of Parlia-
ment, if distinctly referred to and engrafted into the enacting
clause. Faley, 8th ed., p. 257.
By sec. 5 of 1 Jac. 1, ch. 22, it is enacted that no person
shall carry on the trade of a tanner, except under certain qualifi-
cations therein mentioned; the seventh section enacts that no
person shall buy or contract for any rough hides, &c., but such
person as hy virtue of that Act might lawfully use the trade of a
tanner. In a conviction upon this section it was held not to be
sufficient to set forth, in the words of it, that the defendant was
not such a person as hy virtue of that Act might lawfully use the
trade of a tanner, but the conviction mnst particularly negative
his being within any of the enumerated exceptions mentioned in
the fifth section. R. v. Fratten, 6 T. E. 559.
If an exception occurs in the description of the offence the
exception must be negatived. But if the exception is by way of
proviso and does not alter the offence, but merely states what
persons are to take advantage of it, the onus is on the accused to
plead and prove himself within the proviso. R. v. Strauss, (1897)
5 B. C. E. 486, 1 a C. C. 103.
The difference between the exception being by way of proviso,
or following the enactment, is illustrated by the two cases follow-
ing:—
(1) A by-law of the city of London, Ontario, enacted that
" no person shall in any of the streets, or in the market-place of the
city of Ix)ndon, blow any horn, ring any bell, beat any drum, play
284 NEGATIVING EXCEPTIONS IN CONVICTIONS.
any flute, pipe or other musical instrument, or shout or make, &c.,
&c., any noise calculated to disturb the inhabitants of the said
city. Provided always that nothing herein contained shall pre-
vent the playing of musical instruments by any military band of
Her Majesty's regular Army, or of any military corps lawfully
organized under the laws of Canada." The defendant was con-
victed for beating a drum. On an application to quash the con-
viction it was held not necessary that either the conviction, or com-
mitment, should shew that the defendant did not come within the
exception in the proviso, R. v. Nunn, (1884) 10 P. E. 395.
(2) A conviction for selling liquor on a Sunday omitted to state
that the liquor was not supplied upon a requisition for medicinal
purposes. Held bad, since the enactment prohibiting the sale
was immediately followed by these words, " save and except in
cases where a requisition for medicinal purposes, signed by a
licensed medical practitioner or by a justice of the peace, is pro-
duced by the vendee or his agent." B. v. White, (1871) 21 C. P.
354. See also It. v. McFarlane, 17 C. L. T. Occ. N. 29; R. v.
Smith, 31 0. E. 224; R. v. McKenzie, 6 0. E. 165.
A statute declared certain acts committed by " any person not
legally empowered . . . without the owners' permission,*'
to be unlawful. A conviction stating the acts done, but not
negativing power and permission. Held bad, R. v. Morgan, (1887)
5 M. E. 63.
These rules are not now of the same value and importance as
formerly in view of the provisions of sees. 1124 and 1125 of the
Code relating to convictions removed by certiorari, and the powers
given to the Court or Judge in dealing with objections thereto.
For the wording of sec. 1124 see page 267 supra, and it is
provided by sec. 1125 that
"(c) The omission to negative circumstances, the existence
of which would make the act complained of lawful, whether such
circumstances are stated by way of exception or otherwise, in the
section under which the offence is laid, or are stated in another
section," shall be held to be within the provisions of sec. 1124.
See Ex parte Mitchell, 16 C. C. C. 205, and Ex parte Mclntyre,
16 C. C. C. 38.
FORFEITUBE OP THE PENALTY.
The conviction must adjudge a forfeiture of the penalty. Upon
consulting the form 32 it will be seen that the adjudication is as
follows : —
FORFEITURE OF THE PENALTY MUST BE ADJUDGED. 285
"And I adjudge the said A. B. for his said offence to forfeit
and pay the sum of $ ... &c., &c., to be paid and applied
according to law, &c., &c., and if the said several sums are not
paid forthwith, &c., I adjudge the said A. B. to be imprisoned,
&c., &c."
The defendant was convicted and adjudged " to forthwith pay
$100 and in default of payment to be imprisoned for six months."
Held, no adjudication of forfeiture and prisoner discharged. B.
V. Cromll, (1897) 2 C. C. C. 34.
The conviction adjudged imprisonment " and also to pay a fine
of $5, to be paid and applied according to law." Held, invalid
for want of adjudication of forfeiture. R. v. Burtress, (1900) '6
C. C. C. 536 ; see E. v. Newton, 11 P. K. 98, and It. v. Cyr, 12 P.
E. 24.
In awarding punishment the justice should be careful not to
exceed the authority given him by the statute.
A conviction containing an adjudication far in excess of that
which might lawfully have been imposed will not be amended upon
certiorari. Leonard v. Pelletier, (1903) 9 C. C. C. 19.
On a summary conviction under Code section 537 for wilfully
killing a dog, the whole penalty which is not to exceed $100 " over
and above the amount of injury done," belongs to the Crown and
there is no jurisdiction in the magistrate to award damages to be
paid to the owner of the dog: R. v. CooJc, 16 C. C. C. 234. The
owner's remedy for damages would be by an action brought in a
civil Court.
Convictions Generally.
A conviction by two justices for taking certain timber felon-
iously or unlawfully. Held bad, for it should not have been in the
alternative; if the taking was unlawful only, not felonious, it
should have been shewn how unlawful, and also that the offence
came under some statute which gave the justices power to oonvict.
R. V. Craig, 21 TJ. 0. E. 552.
Where the conviction purported to be for an offence against
a by-law, but shewed no such offence, it was <|uashed, and it was
held that it could not be supported as warranted by the general
law. In Re Bates, 40 U. C. E. 284.
Whire a conviction proceeded on a repealed statute the Court
quashed the conviction although it might have been supported
a86 EXAMPLES OF INVALID CONVICTIONS.
under the repealing Act if the justices had professed to proceed
under it. Michell v. Brown, 1 E. & E. 267, 28 L. J. M. C. 53.
A conviction under a repealed statute cannot be upheld. R. v.
Kaulhach, 22 C. C. C. 219, But the repeal of a statute after a
conviction under it will not prevent the enforcement of the con-
viction by imprisonment or otherwise. Re Lynch, 12 C. C. C. 342.
Defendant was convicted of allowing his cattle to go at large in
the township of Comwallis. Held that the conviction was bad
in that it did not set out the by-law or ordinance of the sessions
creating the offence, and that the objection was covered by the
ground taken in the rule that the conviction did not shew any
offence for which it could be lawfully made. Starr v. Heales, 4 E.
& G. N. S. E. 84.
A conviction for selling intoxicating liquor contrary to the
provisions of the Canada Temperance Act contained no reference
to the Act, did not shew when the offence was committed and
merely adjudged that the defendants pay $100 for selling in-
toxicating liquors. Held, bad. The information and warrant
cannot be looked at to see that an offence has been committed.
Woodloch V. Dickie, 6 E. & G. N. S. E. 86, 6 0. L. T., Occ. :N".
142.
If a statute specifies the grounds of forfeiture the conviction
must shew specifically the particular fact which forms the ground
of forfeiture, in order that the Court may see that the penalty has
been properly imposed and be quite sure that the convicting jus-
tice has not mistaken the law. Ex parte John Smith, 3 D. & E.
461.
A conviction is bad if it charges the offence in the alternative.
Where it was set out in the conviction that the defendant "did
kill, take, destroy or attempt to kill, take and destroy," the fish,
the Court quashed the conviction for insuflaciency. R. v. Sadler,
2 Chit. 519. See, also, R. v. Roach, 23 C. C. C. 28.
If one of the ingredients required by the statute be the know-
ledge of the party, nothing short of a direct averment to that
effect is sufficient. Dickinson v. Fletcher, L. E. 9 C. P. 1.
The defendant pleaded guilty to a charge, intended to be
framed under sec. 242a of the Code (enacted in 1913), that he
" did neglect his wife," and the conviction was only a record of
this plea. Held that a formal conviction and warrant of commit-
ment framed in the language of the statute could not be supported
by the plea. R. v. Chitnita, 22 C. C. C. 344.
"It is a rule with respect to summary proceedings before
justices on penal statutes that, after conviction, nothing can be
EXAMPLES OF INVALID CONVICTIONS. 287
intended, so as to get rid of any defect in point of form. Every-
thing necessary to support the conviction must appear on the face
of the proceedings, and must be established by regular proof, or
by the admission of the party of that which is not proved."
HoLEOYD, J., in B. V. Daman, 1 Chit. 155.
All the facte necessary to support the proceedings must be
expressly alleged and not left to be gathered by inference, or in-
tendment.
Upon a conviction under 11 Geo. II, c. 19, for a fraudulent re-
moval of goods to avoid distress, it was held that, as the justices
have no jurisdiction except where one party is landlord and the
other tenant, it must appear upon the face of their order that the
party removing the goods was tenant, and that it cannot be sup-
plied by intendment. R. v. Davis, 5 B, & A. 551.
Defendant was convicted of unlawfully and knowingly assist-
ing the importation of an alien and foreigner into Canada under
contract and agreement made previous to his importation to per-
form labour and services in Canada contrary to 60 and 61 Vict,
ch. 11 (D.) as amended by 61 Vict. ch. 2, and 6 Edw. VII. ch. 13.
Held, that the written consent of the Judge did not comply
with the intention of the statute as it should have contained a
general statement of the offence alleged to have been committed,
mentioning the name of the person in respect of whom the offence
was alleged to have been committed, and the time and place with
sufficient certainty to identify the particular offence intended to be
charged. Conviction quashed. R. v. Breckenridge, 6 0. "W. R.
501, 10 0. L. E. 459.
Where a conviction was made for ninety days' imprisonment
instead of three months, as authorized by the statute, it was
quashed, on the ground that ninety days may possibly be more
than three calendar months, and an amendment was refused. R.
V. Gavin, 1 0. C. C. 59, 30 N". S. E. 162.
It is difficult to understand this decision, for the conviction was
made on the 1st of August and the only three successive months
containing less than 90 days would be February, March and
April. See also R. v. Rudolph, 17 0. 0. C. 206, where it is
pointed out that the effect of R. v. Gavin, supra, is wiped out by
subsequent legislation, and such a defect was held to be amendable.
See, also, R. v. Brindley, past, p. 298,
In Ex parte Daigle, 18 O. 0. C. 211 it was held by two of the
Judges that, where a statute imposed three months as the mini-
mum term of imprisonment, a conviction awarding only 60 days
288 MUST BE DUE CONTICTION BEFORE PUNISHMENT,
should be <juashed. It sems to the writer, however, that sub-sec-
tion (b) of section 1125 of the Code expressly apphes to enable
the Caurt to cure such an objection.
A conviction under a by-law must shew the by-law that the
Cburt may judge its sufficiency. And it must shew by what muni-
cipality the by-law was passed. R. v. Osier, 32 JJ. C. R. 324.
The death of the prosecutor, who is also informant, after a
summary conviction, before the service on him of an order nisi
to quash, does not prevent the Court from dealing with the matter
and from quashing the conviction. R. v. Fitzgerald, 29 0. R.
203.
On an application to quash, the convicting justice must be
made a party to the rule. R. v. Law, 27 U. C. E. 260.
A conviction for " procuring " a pistol with intent unlawfully
to do injury to another person, is not a sufficient conviction for
" having on hie person a pistol, &c.," and is bad as not disclosing
an offence known to the law. R.v. Mines, (1894) 1. C. C. C. 217,
25 0. E. 577.
A person shall only be deemed guilty of an offence and liable
to punishment after being duly convicted, and this is enacted by
sec. 1027 of the Code as follows: —
1027. Whenever a person doing a certain act is declared to be guilty
of any offence, and to be liable to punishment therefor, it shall be under-
stood that such person shall only be deemed guilty of such offence and
liable to such punishment, after being duly convicted of such act.
Oedbes of Justices.
In considering section 727, we have so far confined ourselves
to convictions and must not lose sight of the fact that the section
relates to orders as well as convictions.
In Bums' Justice, vol. 3, p. 1108, it is said: "It is not easy
to fix any rule for distinguishing in the abstract between what
things are the subject of orders of justice and what of convic-
tions."
By sec. 727 the conviction or order afterwards drawn up shall
be " in such one of the forms of convictions or of orders from
31 to 36 inclusive as is applicable to the case, or to the like effect."
Upon reference to these, it will be noticed that the forms of
conviction are for "penalties." And the adjudication is ex-
pressed to be for both "forfeiture" and payment, whereas the
DISTINCTION BETWEEN ORDERS AND CONVICTIONS. 289
forms of orders are for the " payment of money/' and the adjudi-
cation is for " payment " only, omitting the " forfeiture." In a
conviction the defendant is adjudged for his offence "to forfeit
and pay," whereas in an order he is adjudged " to pay " simply.
A conviction states the offence and the time and place when
and where it was committed. An order states the facts entitling
the complainant to the order With the time and place when and
where they occurred.
A conviction is based upon an information for an offence.
An order is based upon a complaint. For instance, under ihe
Masters and Servants Act in a claim' for wages, the servant com-
plains that so much wages are due to him, naming the amount,
and if so found by the justice he orders the master to pay the
wages, he does not impose a penalty, so that the adjudication of
the justice in a case of this kind will be authenticated by way of
an order and not conviction. o i...v
Upon a complaint laid by a servant for non-payment of wages
the justice should order the payment of the wages and not impose
a penalty. In re FoTlansby and McArthur, (1874) Man. R. Temp.
Wood 4.
In matters relating to landlord and tenant; the committal
of lunatics; of matters concerning children under the Children's
Protection Act, and in various other matters outside the Oriminal
Code, justices adjudicate by way of order instead of conviction.
Before the statute of 4 Geo. II, convictions were always re-
corded in Latin, whereas orders were returned in English.
There is no. material distinction between the mode of con-
struing an order and a conviction, whatever favourable intendment
may be made in support of the former, when once the essential
point of jurisdiction is established. R. v. Downshire, 6 N. & M.
at p. 105 ; Day v. King, 5 A. & E. at p. 367 ; R. v. HulcoU, 6 T.
R. 5S3.
It must expressly appear on the face of the order that the
justices had jurisdiction to make it, and the facts raising such
jurisdiction should be shewn, or it will be bad.
The order must state that the party against whom it is made
was duly summoned to answer the charge, or that he was present
at the hearing, unless the statute allows the order to be made ex
parte.
c.c.p. — 19
290 REQUISITES OF ORDEKS.
The charge should be stated with the same degree of certainly
and precision as in a conviction and the hearing and adjudica-
tion must also be stated.
An order may be good in part and bad for the residue, whereas
a conviction is an entire judgment and indivisible; if any material
part be faulty it vitiates the whole. R. v. CathercUl, 2 Stra. 900.
An order of justices which is bad in part may be enforced as
to the good part, provided that on the face of the order the two
parts are clearly separable, and it is not necessarj- in such case
to quash the bad part of the order before enforcing the residue.
R. V, Green, 20 L. J. M. C. 168.
The neglect or refusal to obey an order of justices concerning
a matter over which they have jurisdiction, after the order has
been personally served on the party required by the order to do
the act, is an offence indictable at common law as a misde-
meanour, notwithstanding a specific penalty is provided by the
statute for the neglect of that duty which the order is intended
to enforce. R. v, Robinson, 2 Burr. 799; R. v. Harris, 4 T. E.
205 ; R. V. Kingston, 8 East 41 ; R. v. Hollis, 2 Stark. 536 : R. v.
Ferrall, 20 L. J. M. C. 39 ; R. v. Walker, L. E. 10 Q. B. 355.
The signature is an essential part of the order and the order
cannot be considered as made until reduced into writing and
signed by the justice. R. v. Flintshire, 10 Jur. 475.
As to serving minute of order before issuing warrant of com-
mitment or distress. See sec. 731 of the Code.
Conclusion.
The conviction or order is required to be drawn up on parch-i
ment or on paper under the hand and seal of the justice.
An order having an impression made on it with ink by means
of a wooden block in the usual place of a seal was held sufficient.
R. V. St. Paul Covent-Garden, 7 Q. B. 232, 14 L. J. M. C. 109.
Justices need not sign their Christian names at full length:
their usual signature is sufficient followed bv their description of
office as " J.P.," '' P.M.," " S.M."
Wherever a conviction is made by two justices they must both
sign and seal the same, though only the signature of one of them
is required to the distress warrant and commitment.
It is essentially necessary that the date should be properly
filled in, as this becomes material where the time for conviction
is limited by statute.
CONVICTIOX OF JOINT OFFENDERS. 291
A magistrate can amend his conviction at any time before the
return of a certiorari. R. v. McCarthy, 11 0. E. 657; Ux parte
Giberson, (No. 1), (1909) 16 C. 0. C. QQ.
Joint Offenders.
728. When several persons join in the commission of the same offence,
and upon conviction thereof, each is adjudged to pay the penalty which
includes the value of the property or the amount of the injury done,
no further sum shall be paid to the person aggrieved than such amount
or value and costs, if any, and the residue of the penalties imposed shall
be applied in the same manner as other penalties imposed by a justice are
directed to be applied.
Several persons may be charged and convicted jointly of the
one offence of keeping a house of ill-fame. R. v. Bloom, 22 C. C.
C. 205.
Any number of persons may be charged and convicted jointly
with the offence of playing in a common gaming house, if they
were all actually present and taking part in the same game. R. v.
Toy Moon, 19 C. O. C. 33, 21 M. E. 527.
The defendants E. E. and H. E., his wife, were jointly con-
victed for having wantonly, cruelly and unnecessarily beaten, ill-
used and abused a yoke of oxen the property of J. W. D., and for
such offence were adjudged to pay a fine of $20 and $22.46 for
costs, and in default to be imprisoned. The Court held that the
offence was single in its tiature and only one penalty could be
awarded, but it ought to be several against each defendant, other-
wise one who had paid his proportional part might be kept in
* prison until the other had paid the residue. Re Rice, 20 N. S. E.
294; Morgan v. Brown, 4 A. & E. 515.
A conviction of- two persons in partnership for an offence, sev-
eral in its natare, and adjudging that they should forfeit and pay,
&c., is bad, for a joint conviction in such case is bad; the penalty
should have been imposed severally. Ex parte Hoivard, 25 N. B.
E. 191.
First Oonviction and Payment of Damages.
729. Whenever any person is summarily convicted before a justice of
any offence against Part VI., or Part VII., except section four hundred
and nine and sections four hundred and sixty-six to five hundred and eight
inclusive, or against Part VIII., except sections five hundred and forty-two
to five hundred and forty-five inclusive, and it is a first conviction, the
justice may, if he thinks fit, discharge the offender from his conviction
upon his making such satisfaction to the person aggrieved, for damages
and costs, or either of them, as are ascertained by the justice.
292 DISCHARGE OF OFFENDER FROM FIRST CONVICTION.
Part VI. of the Code deals with offences against the person and
reputation. The only offences enumerated in this part which are
punishable upon summary conviction and to which sec. 729 can
apply are as follows: —
Sec. 287. (a) Cutting holes in ice and leaving the same un-
guarded,
(b) Leaving abandoned mine unguarded.
...i"." (c) Omits within five days after conviction to guard
and inclose the same.
Sec. 291. Common assault.
Part VII. deals with offences against rights of property and
rights arising out of contracts and offences connected with trade.
The only offences under this part punishable on summary
conviction and to which sec. 729 is applicable are : —
Sec. 370. Stealing any dog, bird, beast or other animal of a
value not exceeding $20.
Sec. 374. Stealing trees, saplings, shrubs or underwood af the
value of twenty-five cents.
Sec. 375. Stealing plants, vegetables or fruit from gardens,
orchards, &c.
Sec. 376. Stealing cultivated plants, not growing in a garden,
&c.
Sec. 377. Stealing fences, stiles or gates.
Sec. 385. Stealing things deposited in Indian graves.
Sec. 393. Unlawfully killing or wounding pigeons or house
doves.
Sec. 395. Possessing trees, &c., without being able to account
therefor.
Sec. 401. Eeceiving, or retaining, property unlawfully ob-
tained, the stealing of which is punishable on
summary conviction.
Sec. 430. Secreting wreck, or receiving, selling, keeping or
boarding a wrecked vessel.
Sec. 431. Purchasing old marine stores from persons under
16 years of age or receiving same at night.
Sec. 435. Unlawful possession and sale, etc., of public stores.
Sec. 436. Dealers being in possession of public stores unlaw-
fullv.
DISCHARGE ON PAYMENT OF DAMAGES. 293
Sec. 437. Searching for stores near Her Majesty's vessels,
wharfs or docks without permission.
Sec. 438. Eeceiving clothing, furniture, provisions, &c,, from
soldiers or deserters.
Sec. 439. Eeceiving necessaries from seamen or marines.
See. 440. Eeceiving in pawn or otherwise seaman's property.
Sec. 441. Not justifying possession of same.
Part VIII. relates to wilful and forbidden acts in respect of
certain property and the only offences enumerated
in this part to which see. 729 can apply are as
follows : —
Sec. 515. Eecklessly setting fire to forests if the consequences
have not been serious.
Sec. 519. Wilfully damaging goods in railways or vessels.
See. 521. Attempt to damage or obstruct telegraph, telephone
or fire alarm.
Sec. 524. Preventing or impeding or attempting to prevent or
impede the saving of any wreck.
Sec. 526. Mooring vessel to signal, buoy, or other sea mark
used for the purposes of navigation.
Sec. 527. Eemoving natural bar necessary for a harbour.
Sec. 530. Wilful destruction of fences, walls, stiles, gates, &c.
Sec. 533. Injuries to trees, saplings, shrubs, etc.
Sec. 534. Injuries to vegetable productions in gardens.
Sec. 535. Injuries to roots or plants elsewhere than in gar-
dens.
Sec. 537. Injuries to dogs, birds or other animals not cattle.
Sec. 539. Injuries and spoil to property for which no punish-
ment is provided in previous sections of the Code.
The following are the excepted sections : —
Sec. 542. Cruelty to animals.
Sec. 543. Keeping a cock pit.
Sec. 544. Conveyance of cattle by railway without proper rest
and nourishment.
Sec. 545. Obstructing officer in search to ascertain if sec. 544
has been violated.
294 CERTIFICATE OF DISMISSAL OF COMPLAINT.
The justice can only apply the provisions of this section 729
where it is a first conviction, and for the offences above enumer-
ated, and it is a matter entirely in his own discretion, " if he
thinks fit" and he must first convict the offender before he can
exercise this discretion, since the offender is to be " discharged
from his conviction" upon his making satisfaction to the person
aggrieved as indicated in the section.
Dismissing Complaint.
Certificate of Dismissal.
730. If the justice dismisses the information or complaint, he may,
when required so to do, make an order of dismissal in form 37, and he
shall give the defendant a certificate in form 38 which, upon being after-
wards produced, shall, without further proof, be a bar to any subsequent
information or complaint for the same matter, against the same defendant.
From a perusal of form 37, it will be seen that it provides for
dismissal as well when both parties have appeared, and the matter
of the information or complaint has been duly considered by the
justice, as where the complainant or informant does not appear.
This matter was considered by the Supreme Court of New
Brunswick, when it was held by Allen, C.J., Weldon, Wetmore,
King and Frasee, JJ., that the certificate of dismissal provided
for by sec. 43 of the Summary Convictions Act may be granted
as well where the informant neglects to appear and the complaint
is dismissed on that ground, as where he does appear and the in-
formation ia dismissed on the merits. Held, also, (Weldon and
Wetmore, J J., dissenting), that the magistrate or other officers,
before whom an information for an offence against the Canada
Temperance Act is being heard, if a certificate of dismissal for
the same offence is relied upon as a bar to his proceeding, has a
right to inquire whether the previous prosecution was real and
bona fide or was instituted fraudulently and collusively. Ex parte
Phillips, 24 K B. E. 119. But see Hall v. Pittingell, 18 C. C. C.
196, and notes at pp. 199-201.
In cases of common assault the certificate of dismissal is given
under sec. 733 post and apparently is only effective when there has
been a hearing on the merits. See page 296 and cases there cited.
Minute of Order to be Served.
731. Whenever. . by any Act or law. authority is given to commit a
person to prison, or to levy any sum upon his goods or chattels by distress,
for not obeying an order of a justice, tho defendant shall be served with
SERVICE OF MINUTE OF ORDER COMMON ASSAULT. 295
a copy of the minute of the order before any warrant of commitment or
of distress is issued in that behalf.
2. The order or minute shall not form any part of the warrant of
commitment or of distress.
The distress warrant may issue at any time after adjudication
and before the formal order has been drawn up, provided a minute
of the order hasi been served. Ratt v. Parkinson et al., 20 L. J.
M. C. 208.
It is to be noted that this section refers to orders and not con-
victions. No minute of a conviction need be served nor a copy of
the conviction.
The defendant is entitled to a copy of the conviction from the
convicting justice on application for the same.
Common Assault.
732. Whenever any person is charged with common assault, any
justice may summarily hear and determine the charge.
2. If the justice finds the assault complained of to have been accom-
panied by an attempt to commit some other indictable offence, or is of
opinion that the same is. from any other circumstance, a fit subject for
prosecution by indictment, he shall abstain from any adjudication there-
upon, and shall deal with the case in all respects in the same manner as
if he had no authority finally to hear and determine the same.
This section applies only to common assaults as distinguished
from aggravated assaults (sec. 296), and assaults occasioning
actual bodily harm (sec. 295).
An assault is defined by sec. 290 of the Code as follows : —
Definition of Assault.
290. An assault is the act of intentionally applying force to the
person of another, directly or indirectly, or attempting or threatening, by
any act or gesture, to apply force to the person of another, if the person
making the threat has, or causes the other to believe, upon reasonable
grounds, that he has present ability to effect his purpose, and in either
case, without the consent of the other or with such consent, if it is
obtained by fraud.
I
291. Every one who commits a common assault is guilty of an indict-
able offence and liable, if convicted upon an indictment, to one year's im-
prisonment, or to a fine not exceeding one hundred dollars, and on sum-
mary conviction to a fine not exceeding twenty dollars and costs, or to
two months' imprisonment, with or without hard labour.
By sec. 291 the punishment for a common assault on summary
conviction shall not exceed $20 and costs, or 2 months' impri-
sonment with or without hard labour.
And, as we have seen by the provisions of sec. 709 of the Code,
no justice shall hear and determine any case of assault or bat-
tery in which any question arises as to the title to any lands, &c..
296 DISMISSAL OF COMPLAINT OF ASSAULT.
or as to any bankruptcy or insolvency or any execution under the
process of any Court of justice.
Sub-section (2) of sec. 732 enables a justice to commit the
defendant for trial if he thinks the assault is a fit subject for in-
dictment, so that, as the case develops from the evidence, if the
justice realizes that the matter is of a serious nature, he can re-
fuse to adjudicate, but may proceed as upon a preliminary inquiry
and either commit the defendant for trial under sec. 690 or pro-
ceed under sec. 696 to take bail for his appearance for trial.
Dismissal of Complaint of Assault.
733. If the justice, upon the hearing of any case of assault or battery
upon the merits where the information is laid by or on behalf of the person
aggrieved, under the last preceding section, deems the offence not to be
proved, or finds the assault or battery to have been justified, or so trifling
as not to merit any punishment, he shall dismiss the complaint and shall
forthwith make out a certificate under his hand stating the fact of such
dismissal, and shall deliver such certificate to the person against whom the
complaint was preferred.
734. If the person against whom any such information has been
laid, by or on behalf of the person aggrieved, obtains such certificate, or,
having been convicted, pays the whole amount adjudged to be paid or
suffers the imprisonment, or imprisonment with hard labour, awarded, he
shall be released from all further or other proceedings, civil or criminal,
for the same cause.
There must have been a hearing of the case upon the merits,
that is, where both parties have appeared and. evidence has been
adduced upon behalf of all parties and a full inquiry made by the
justice.
Where a complainant gave notice to the defendant that he
would not attend before the magistrate or offer evidence in sup-
port of the charge of assault, and did not in fact attend or offer
evidence, but the defendant appeared and obtained from the
magistrate a certificate of dismissal under this section.
Held, that there had not been a hearing upon the merits and
the magistrate had no jurisdiction to grant the certificate, and
that the latter was therefore no bar to an action in which the
validity of the certificate might be inquired into. Reed v. Nutt,
24 Q. B. D. 669. But see Vaiighton v. Bradshaw, 9 C. B. N. S.
103, 30 L. J. C. P. 93, a decision to the contrary, but upon a
statute, whicli was afterwards amended by adding the words
" upon the merits " after the word " hearing."
The provisions of these sections are intra vires of the Parlia-
ment of Canada. Flick v. BrisUn, 26 0. R. 423.
DISMISSAL OF COMPLAINT OF ASSAULT. 297
A charge of " shooting and wounding with intent to do griev-
ous bodily harm " came on before two justices of the peace for
preliminary hearing. The information was laid by a peace offi-
cer, and the person aggrieved attended the hearing, having been
subpoenaed, and gave evidence. Of their own motion the Justices
changed the charge to one of common assault and convicted and
fined the accused accordingly. Held, that the justices had no
right to alter the charge to one of common assault and their
certificate of conviction and payment of the fine was a nullity
and no bar under sec. 866 (now 734) of the Code, to an action by
the person aggrieved to recover damages. Miller v. Lea, 25 A.
E. 43S.
The crime of assault may be committed though the party
assaulted may have consented to fight. B. v. Coney, (1882) 8
Q. B. D. 534, followed. R. v. Buchanan, (1898) 12 M. R. 190.
The granting of the certificate is a ministerial act consequent
on the dismissal. The application for it need not be made in the
presence of the other party and it may be made at any time, the
word "forthwith" in the statute meaning forthwith on an appli-
cation for it, and not forthwith on the dismissal of the informa-
tion. Hancock v. Somes, 1 E. & E. 795 ; Costar v. Hetherington,
1 E. & E. 802.
A certificate of dismissal of a charge of assault is a bar to an
indictment for unlawful wounding where the transaction is the
same. B. v. Ellington, 31 L. J. M. 0. 14.
The objection of res judicata must be taken at the hearing
before the justice, and should not be reserved as a ground of
quashing the conviction after it is made. B. v. Herrington, 12
W. E. 420.
An entry in a justice's note book, when proved, is sufficient
proof of an adjudication.
Section 866 (now 734) bars civil action only where the charge
is triable summarily under sec. 864 (now 732), and does not
affect, or bar, where the charge is for an assault causing actual
bodily harm, an indictable offence. Nevills v. Ballard, (1897)
1 C.'C. C. 434; and see Lann v. Boyd, (1904) 11 C. C. C. 74,
and Clermont v. Lagace, (1897) 2 C. C. C. 1. Wliere a person
is charged with aggravated assault and consents to be tried sum-
marily by a magistrate and either pleads guilty, or is found
guilty, and is fined and pays his fine and the costs, the convic-
tion will be a bar to further criminal proceedings upon the same
298 CONVICTION AS BAR TO ACTION FOR DAMAGES.
charge, but it will not relieve him from a civil action for dam-
ages. Clwlce V. Rutherford, (1901) 5 C. O. C. 13. As to a
summary conviction being a bar to a civil action for damages
see HebeH v. Hebert, (1909) 16 C. C. C. 199.
The singular feature of the first case just quoted is that it seems
to have escaped the attention of the Judge that the justice of the
peace had no jurisdiction whatever in the premises to make the
conviction that he did, and the same was bad; the proceedings
being void by reason of the fact that the justice assumed and
acted as if he had the authority and jurisdiction of a police magis-
trate, his only authority in fact being to hold a preliminary hear-
ing and commit for trial if the evidence warranted it.
B. V. Brindly, (1906) 12 C. C. C. 170, reports the conflicting
opinions of Graham, E.J., and Russell, J., in habeas corpus pro-
ceedings as to whether, or not, a conviction for common assault
imposing a sentence of sixty days was good in law. As sec. 291
fixes the punishment at two months, it was contended upon be-
half of the accused that sixty days might mean more than two
months.
Graham, E.J., said : " There is in my opinion no reasonable
possibility of the sentence exceeding the statutory period, and
therefore no ground for discharging her." He refused the order
asked for.
The application was renewed before Russell, J., who said:
" If the conviction may so operate as to detain the prisoner in
gaol for a longer period than she would be detained if the jus-
tice had inserted ' two months ' as the law directs, then it seems
to me it must be a bad conviction. Prisoner's counsel has pointed
out several ways in which this may happen." !N'o one appeared
in opposition to the motion, and Russell, J., made the order
absolute discharging the prisoner.
This decision indicates how necessary it is for justices io
follow explicitly the wording of the statute when awarding pun-
ishment. When the statute provides for two months' imprison-
ment it means that period; it does not mean, or state, sixty
days, and justices should govern themselves accordingly.
See R. V. Gavin, 1 C. C. C. 59, and other cases at p. 287.
Costs on Conviction or Order.
735. In every case of a summary conviction, or of an order made by
a justice, such justice may, in his discretion, award and order in and by
the conviction or order that the defendant shall pay to the prosecutor or
complainant such costs as to the said justice seem reasonable in that
COSTS ON CONVICTION OE ORDER. 299
behalf, and not inconsistent with the fees established by law to be taken on
proceedings had by and before justices.
736. Whenever the justice, instead of convicting or making an order,
dismisses the information or complaint, he may, in his discretion, in and
by his order of dismissal, award and order that the prosecutor or com-
plainant shaU pay to the defendant such costs as to the said justice seem
reasonable and consistent with law.
" Laws which impose penalties are subject to a strict construc-
tion, and the punishment and all its incidents must be men-
tioned in clear and unambiguous language; they must be estab-
lished by positive enactment, and cannot be gathered from im-
plication and still less by conjecture. Statutes which give costs
in penal proceedings are likewise to be construed strictly, inas-
much as such costs are an increment of the penalty. In laM's
imposing penalties and allowing costs in penal proceedings the
rule is that the construction most beneficial to the offenders must
be adopted." Wurtele^ J., at p. 123, in Ex parte Lon Kai Long,
(1897) 1 C. C. C. 120.
In the above case the defendant, along with others of his
countrymen, was convicted under a by-law of the City of Mon-
treal requiring public laundries to take out licenses. The defend-
ant was fined $40 with $2 costs, and in default two months'
imprisonment, " unless the tax and costs and the charges for con-
veying him to gaol should be sooner paid." The City charter
and the by-law did not contain any enactment providing for the
costs and charges for conveyance to gaol. Consequently the war-
rant of commitment was held bad and irregular and qu£ished.
Ibid.
A warrant of commitment in default of a fine for smuggling
under the Customs Act was held invalid because the amount
of the expenses of conveying the defendant to gaol was not fixed
in that instrument. R. v. McDonald, (1S98) 2 C. C. C. 504.
The making up of the costs is a ministerial act and does not
go to the jurisdiction. If the magistrate in making up the costs
has not acted bona fide he is liable to a criminal information;
or if, with no dishonest intention, he has taken too much for
costs, he may be made to refund the excess, but his conviction is
good. Ex parte Howard, (1893) 32 N. B. E. 237, followed in Ex
parte Rayworth, (1896) 34 N. B. E. 74, 2 C. C. C. 230.
A conviction directed that the defendant be imprisoned for a
term specified unless such fine and costs, &c., and the costs of
commitment were sooner paid. These words ''costs of commit-
ment" are irregular and may be treated as surplusage, and the
300 COSTS IN DISCRETION OF JUSTICE.
fact of their being included in the conviction will not invalidate
it. R. V. Doherty, (1899) 3 C. C. C. 505.
A warrant of commitment for non-payment of a penalty should
ascertain and set forth the costs of commitment and conveying
to gaol, if they have not been ascertained in the conviction.
OsLEK, J. A., at p. 92, in R. v. Murdoch, (1900) 4 C. C. C. 82, 27
A. R. 443.
The costs of conveying the defendant to gaol, who had been
convicted for a third offence under the Nova Scotia Liquor Li-
cense Act, cannot be legally awarded against him. And, where the
amount of such costs is stated in the warrant of commitment, it is
improperly included and cannot be treated as surplusage, and the
warrant was held to be bad. R. v. Doherty, supra, distinguished.
Re J. W. King, (1901) 4 C. C. C. 426; and see R. v. Townsend
(No. 3), (1906) 11 C. C. C. 153.
A conviction is also open to objection on the ground of the
application of the penalty, if the award of the costs is to the justice
instead of to the informant. R. v. Roche, (1900) 32 0. B. 20, 4
C. C. C. 64; see R. v. Law Bow, (1903) 7 C. C. 0. 468.
If the conviction adjudges a pecuniary penalty and a distress
to realize the same, and in default of suflBcient distress that de-
fendant be imprisoned, the costs of distress and of conveying the
defendant to gaol are not in the discretion of the justice, but must
be included in the formal conviction. R. v. Vaniassel, (1894) 5
C. C. 0. 128 and 133, and see R. v. Beagan (No. 2), 6 O, C. C. 56.
The resolution of a municipal council to put an invalid convic-
tion in force, or to pay any costs of putting it in force, is vltra
vires. It transcends the statutory powers of any municipal coun-
cil to award funds for illegal purposes. Boyd, C, at p. 21, OatU
V. Ellice, 6 C. C. C. 15.
By sec. 735 it is in the discretion of the justice to award costs.
The costs must be awarded by the conviction or order, that is
the amount must appear on the face of the conviction and must
agree with the amount stated in the minute of adjudication.
The costs awarded are to be such as to the justice seems reasonable
and must not be inconsistent with, that is, must not exceed, the
fees established by law to be taken on proceedings had by and be-
fore justices.
By sec. 770 the fees therein mentioned and no others shall
be and constitute the fees to be taken on proceedings before jus-
tices under this part.
AWARDING IMPROPER COSTS. 301
As to excessive costs included in a conviction see B. V. Crow-
ley, 16 C. C. C. 373, where it was held that such inclusion is a good
ground for discharging the prisoner on habeas corpus from his
commitment under warrant following the conviction.
But, in R. V. Morris, 16 C. C. C. 1, R. v. Smith, 16 C. C. C.
425, and R. v. Mitchell, 19 C. 0. C. 113, it was held that the Court
should not discharge the prisoner on the sole ground that unau-
thorized costs had been included in the warrant, but should re-
mand him for a sufficient time to have the erroneous judgment cor-
rected.
Unless therefore the Provincial Act relating to summary con-
victions, or some special Act governing the matter in hand, other-
wise provides, no justice can charge other or larger fees than those
enumerated in the tariff in sec. 770, or the tariffs set out in the
Provincial Acts. See R. v. Laird, (1889) 1 Terr. L. R. 179.
In that case a justices' order dismissing an information ordered
the informant to pay as costs a sum which included items for
" rent of hall," " counsel fee," " compensation for wages " and
" railway fare." Held, that none of these items could legally be
charged as costs, and that therefore the order was bad so far as it
awarded any costs.
It was also held that the Court could not amend the order by
deducting the illegal items; though it could amend by striking
out in toto all that part of the order relating to costs.
And see also R. v. Elliott, 12 0. E. 524; R. v. Teho, 1 Terr. L.
R. 196 ; and Re Billy, 6 M. E. 472.
In R. V. Berngan, 17 C. C. C. 329, Townshend, J., refused to
discharge a prisoner detained under a warrant of commitment on
non-payment of fine and costs for the inclusion of so large a sum
as $25 for costs of conveying to gaol, and left the prisoner to his
civil remedy if the fees were excessive.
The Code tariff does not apply under provincial law unless ex-
pressly thereby made applicable. R. v. Excell, 20 0. E. 633.
The awarding of costs to the owner of two dogs, the informa-
tion having been laid by his wife, instead of to the informant,
is a mere irregularity which is cured by sec. 1124 of the Code.
Ex parte Grey, (1906) 12 C. C. C. 481.
Section 1124 provides that no conviction or order made by any
justice, and no warrant for enforcing the same, shall, on being
removed by certiorari, be held invalid for any irregularity, in-
formality or insufficiency therein, if the Court or Judge before
302 COSTS OF CONVEYING PEISONEE TO GAOL,
which or whom the question is raised, upon perusal of the deposi-
tions, is satisfied that an offence of the nature described in the con-
viction, etc., has been committed, etc.
See also sec. 754 of the Code in case of an appeal taken under
the provisions of sec. 749.
Where excessive costs are included in a summary conviction
the Court on certiorari has power under sec. 1124 to amend the
conviction by reducing the costs to the proper items. B. v. Mor-
ns/ supra, and see also R. v. Code, 13 C. C. C, 372, and cases cited
at p. 301, ante.
It is not now necessary to fix and state in the conviction the
costs and charges of conveying the defendant to gaol in default of
payment of the fine enforced. White v. Leak, 18 C. C. C. 337.
It is questionable whether it is necessary now to state the
amount of such costs and charges in the commitment, as form
41 differs from Form F. F. F., in the original Code of 1892.
In Form F. F. F., after the words, " and costs and charges of
conveying him to the said common gaol," followed the words,
" amounting to the further sum of ."
These words "amounting to the further sum of ," are
omitted from Form 41, and it reads " unless the said several sums
and the costs and charges of the commitment and of the con-
veying of the said A.B. to the said common gaol are sooner
paid unto you, etc." See R. v. Code, (1908) 13 C. C. C. 372,
when the question was raised but left undecided, also Re Hoskins,
21 C. C. C. 435.
However this may be, some authoritative statement from the
justice as to the amount " of the costs and charges of the commit-
ment and of the conveying of the accused to the gaol," will have
to be conveyed to the gaoler in order that he may know the amount
required to be paid by the accused before he can release him. It is
suggested that, if the justice who issues the warrant possesses the
necessary information as to these costs and charges, to enable him
to do so, he should endorse the amount upon the warrant and
authenticate such endorsement by his signature. Or, if the jus-
tice is not in a position to compute the amount of such costs and
charges, then perhaps it would be sufficient to instruct the con-
stable to whom he delivers the warrant to make such endorsement
when he hands the warrant to the gaoler.
In R. V. McDonald, 16 O. C. C. 121, on objection to the war-
rant that it did not shew the amount of such costs, the Judge or-
dered the prisoner to be detained until the magistrate could send
COSTS OF CONVEYANCE TO GAOL, 303
in a new warrant fixing the amount, and this case was followed
in Re Lehlanc, 22 C. C. C. 208.
This omission in Form 41, and other forms of warrants of
commitment, was no doubt made advisedly, as in a great many
cases justices living some distance from the gaol to which the
accused has been committed would have to guess as to the actual
amount of such costs and charges.
By item 5 in the Tariff, sec. 770, the constable is entitled to
mileage taking prisoner to gaol " exclusive of the disbursements
necessarily expended in his conveyance." How could a justice
know in advance, so as to insert the true amount in the warrant
of commitment, what these disbursements would be? The con-
stable is the only one who can know since he is the person who
will make the disbursements. It is therefore presumably contem-
plated by the change in the forms of commitment that the prac-
tice to be followed hereafter will be for the constable by endorse-
ment on the warrant, or otherwise, to state to the gaoler what
these " costs and charges " will be. It is better for the constable
to endorse them on the warrant as there is then a record of them
easily found.
A conviction adjudging the defendant to pay a sum of costs
without saying to whom the costs are to be paid is void under this
section. The conviction should order the costs to be paid to the
complainant. R. v. Mdbey, 37 IT. C. E. 248.
" As the License Act does not fix a tariff of costs, the justices
could allow such costs as they considered reasonable. There was
jurisdiction to order costs to be paid and the objection in the
rule that the sum awarded for costs is excessive and unwarranted
by law cannot be entertained." Bain^ J., at p. 494, in R. v.
Starkey, (1891) 7 M. R. 489; citing R. v. Sanderson, 12 0. E. 178,
and R. v. Brown, 16 0. E. 41.
Costs on Dismissal.
Where the prosecutor, or complainant, is ordered to pay the
defendant's costs as provided by sec. 736, the justice, on default
of payment of the same, may issue a warrant of distress on the
goods and chattels of the prosecutor, or complainant, in Form 45,
for the amount of such costs, and in default of distress a warrant
of commitment, in Form 46, may issue. See sec. 742, post. The
term of imprisonment shall not exceed one month.
30-4 recovery of costs enforcing conviction.
Recovery of Costs.
737. The sums so allowed for costs shall, in aU cases, be specified in
the conviction or order, or order of dismissal, and the same shall be
recoverable in the same manner and under the same warrants as any
penalty, adjudged to be paid by the conviction or order, is to be recovered.
738. Whenever there is no such penalty to be recovered, such costs
shall be recoverable by distress and sale of the goods and chattels of the
party and, in default of distress, by imprisonment, with or without hard
labour, for any term not exceeding one month.
The costs need not be set out in detail item by item, only
the aggregate amount. The costs that shall be specified do not
include costs of conveying the accused to gaol. The words used
in the section are " the sums so allowed for costs ;" these sums so
allowed are the costs awarded under the powers conferred by sec.
735. Costs of the commitment and of the conveying of the de-
fendant to gaol are governed by sec. 739 (2) post.
"I think that in this sec. 870 (now 738) the words 'such
penalty ' refer to the previous section, ' penalty adjudged to be
paid,' also that the words ' to be recovered,' apply rather to a
pecuniary penalty than to a penalty of imprisonment." Graham,
E.J., at p. 9, in R. v. Johnston (No. 1), (1906) 11 C. C. C. 6.
What the Justice may Adjudge.
730. Whenever a conviction adjudges a pecuniary penalty or com-
pensation to be paid, or an order requires the payment of a sum of money,
whether the Act or law authorizing such conviction or order does or does
not provide a mode of raising or levying the penalty, compensation or sum
of money, or of enforcing the payment thereof, the justice by his convic-
tion or order, after adjudging payment of such penalty, compensation or
sum of money, with or without costs, may order and adjudge, —
(o) that, in default of payment thereof forthwith, or within a limited
time, such penalty, compensation or sum of money and costs, if
the conviction or order is made with costs, shall be levied by distress
and sale of the goods and chattels of the defendant and, if sufiicient
distress cannot be found, that the defendant be imprisoned in the
manner and for the time directed by the Act or law authorizing such
conviction or order or by this Act, or for any period not exceeding
three months, if the Act or law authorizing the conviction or order
does not specify imprisonment, or does not specify i.ny term of
imprisonment, unless such penalty, compensation or sum of money
and costs, if the conviction or order is made with costs, and
the costs and charges of the distress and of the commitment and
of the conveying of the defendant to gaol, are sooner paid ; or,
(6) that, in default of payment of the said penalty, compensation or
sum of money, and costs, if any, forthwith or within a limited time,
the defendant be imprisoned in the manner and for the time men-
tioned in the said Act or law, or for any period not exceeding three
months, if the Act or law authorizing the conviction or order does
not specify imprisonment, or does not specify any verm of imprison-
ment, unless the same and the costs and charges of the commitment
and of the conveying of the defendant to gaol are sooner paid.
ISSUE OF WARRANT OF DISTRESS. 305
2. Whenevei*, under such Act or law, imprisonment with hard labour
may be ordered or adjudged in the first instance as part of the punishment
for the offence of the defendant, the imprisonment in default of distress
or of payment may be with hard labour.
This section was amended in 1909 by striking out the words
"distress and of the" in the 9th line of paragraph (b).
Paragraph (a) provides for distress and sale of the goods and
chattels of the defendant in default of his payment of the penalty,
compensation, or sum of money, or costs. If sufficient distress
cannot be found, then the defendant may be imprisoned. If the
Act or law authorizing the conviction, or order, does not specify
the imprisonment, then the imprisonment shall not exceed three
months.
Paragraph (&) provides for imprisonment in the first instance
in default of payment at the option of the justice.
See sec. 731, supra, as to requisites before issue of warrants of
commitment or distress for not obeying an order of a justice.
Warrant of Distress.
The justice making the conviction, or order mentioned in para-
graph (a), may issue a warrant of distress, in Forms 39 or 40,
Form 39 is for distress upon a conviction for a penalty, and
Form 40 is for distress upon an order for the payment of money.
See sec. 741, post.
When it appears to the justice that the issuing of a distress
warrant would be ruinous to the defendant and his family, or
whenever it appears to the justice by the confession of the de-
fendant, or otherwise, that he has no goods or chattels whereon
to levy distress, then the justice instead of issuing a warrant of
distress may commit the defendant to gaol. See sec. 744, post.
A distress warrant can be backed, or endorsed, for execution
outside the jurisdiction of the justice. See sec. 743, post.
Upon looking at Forms 39 and 40, it will be seen that the
constable, or peace officer, who executes the warrant is commanded
in His Majesty's name forthwith to make distress of the goods
and chattels of the defendant.
The defendant is given a certain number of days specified in
the warrant after the making of the distress, to pay the amounts
C.C.P.— 20
306 EXECUTION OF A DISTKESS WARRANT.
specified together with costs of distress, and if payment is not
made, then the goods and chattels distrained are to be sold and
the money arising from the sale is to be paid to the justice issuing
the warrant.
If no distress can be found, then that fact is to be certified
to the justice by the constable executing the warrant " to the end
that such proceedings may be had therein as to law appertain."
When distress is ordered, the warrant of distress must be exe-
cuted in its terms, and, if there is no distress found, then the oflB-
cer executing the warrant must make his return to the justice
(Form 43) before a warrant of commitment can issue for the im-
prisonment of the defendant for want of distress. This warrant
is Form 44.
If the conviction orders distress, and, before a warrant of dis-
tress has been executed and a return thereto made, the justice
issues a warrant of commitment, his action in so doing and the
warrant, arrest and imprisonment are all illegal and will subject
the justice to an action for damages.
If, on the other hand, the magistrate satisfies himself that no
sufficient distress can be found, and the constable has done the
same and made his return accordingly, the magistrate will be
justified in issuing his warrant of commitment, and will not be
liable, although it subsequently appears that there was sufficient
distress. See E. v. Sanderson, (1886) 12 0. E. 178; Mofat
V. Barnard, 24 U. C. E. 498, and McLellan v. McKinnon, 1 0.
E. 219.
The constable will be liable in damages if he makes an untrue
return, knowing it to be false. R. v. Sanderson, supra.
If the warrant of commitment for want of distress (Form 44)
omits to recite the fact of a distress warrant having issued and
of a return having been made of no sufficient distress, and that
no sufficient distress could be found, or that a distress was dis-
pensed with by the justice under sec. 744, it will be invalid. See
E. V. Skinner, (1905) 9 C. C. C. 558, and E. v. Eawding, (1903)
7 C. C. C. 436.
Where a commitment provided that the prisoner shall be de-
tained until the fine shall be paid to the keeper of the gaol, it was
held that the payment to the gaoler is justified by law, although
the conviction said that the fine is to be paid to the clerk of the
Eecorders' Court. E. v. Bougie, (1899) 3 C. C. C. 487.
DEGREES OF PUNISHMENT. 307
Under a warrant of distress, upon a convicton for an offence
against the second part of the Canada Temperance Act, the de-
fendant's property must be levied on, though it consists of in-
toxicating liquors only, and is in a county where the Act is in
force. Ex parte Fitzpatrick, (1893) 5 C. C. C. 191.
When both fine and imprisonment are authorized as punish-
ment for a statutory offence upon summary conviction, the magis-
trate has discretion to enforce either a fine alone, or imprison-
ment alone, or both, unless the particular statute specially pro-
vides otherwise. Ex parte Kent, (1903) 7 C. C. C. 447.
Degrees op Punishment.
Section 102.8 of the Code provides as to the degrees of punish-
ment. Section 1029 places it in the discretion of the Court as to
the amount of fine or penalty.
These sections of the Code are as follows : —
1028. Whenever it is provided that the offender shall be liable to
different degrees or kinds of punishment, the punishment to be inflicted
Bhall, subject to the limitations contained in the enactment, be in the dis-
cretion of the Court or tribunal before which the conviction takes place.
1029. Whenever a fine may be awarded or a penalty imposed for any
offence, the amount of such fine or penalty shall, within such limits, if
any, as are prescribed in that behalf, be in the discretion of the Court or
person passing sentence or convicting, as the case may be.
When a tender was made to the gaoler at 7.50 p.m. of the
whole sum required to be paid by the warrant of commitment,
the prisoner was entitled to his release. The gaoler was not justi-
fied in refusing the tender, simply because there were prison rules
to the effect that no person would or could be released on pay-
ment of his fine after 5 o'clock in the afternoon, until the next
morning. R. v. Colahan, (1907) 12 C. C. C. 283.
Under the Municipal Clauses Act, B. C, 1896, sec. 81, it is
not necessary to issue the distress thereby authorized before issu-
ing a commitment, but the latter course may be taken as an alter-
native procedure. U. v. Petersky, (1897) 1 C. C. C. 91.
Under the Inland Revenue Act of Canada, it is necessary that
the amount of the costs and charges of conveying to gaol should
be stated in the warrant and, this having been omitted from the
warrant, the prisoner was discharged on habeas corpus. R. v.
Corhett, (1899) 2 C. C. C. 499.
308 imprisonment in the first instance.
Imprisonment in the First Instance,
By paragraph (h) of sec. 739, the justice may order that in
default of payment of the penalty, etc., forthwith, or within a
limited time, the defendant shall be imprisoned for the time men-
tioned in the Act, or law, or for any period not exceeding three
months if the Act or law authorizing the conviction or order does
not specify any term of imprisonment.
And by sub-sec. (2) whenever imprisonment with hard labour
may be ordered, or adjudged, in the first instance, as part of the
punishment, or imprisonment in default of distress, or of pay-
ment, it may be with hard labour.
This provision as to hard labour in default of distress applies
only where imprisonment with hard labour in the first instance
might have been imposed in addition to a fine with imprisonment
in default of distress or payment. See R. v. Clark (No. 1),
(1906) 12 C. C. 0. 17, and R. v. Mclver, (1903) 7 C. C. €. 183.
In R. V. Eorton, (1897) 3 C. C. C. 84, it was held that a con-
viction, under Cr. Code, sec. 537, for unlawfully killing a dog,
which adjudged a penalty and costs and, in default of payment,
imprisonment with hard labour, was bad, because the section only
provides for hard labour when imprisonment without the option of
a fine is ordered, and there is no reference in it to imprisonment in
default of payment of a penalty imposed. '
It is submitted, however, that that ease is no longer the law,
as, since it was decided, sub-sec. 2 of sec. 739 was enacted in 1900
apparently for the verj' purpose of meeting just such a case.
Where the conviction imposes a longer term of imprisonment
than the statute permits, the Court, upon the return of a writ
of certiorari and a perusal of the depositions, has power to amend
the conviction by reducing the term of imprisonment to the statu-
tory limit. R. v. McKenzie, (1907) 12 C. 0. C. 435. See sec.
1124 of the Code, and R. v. Frizell, 22 C. C. C. 214.
As to imprisonment for too short a time, see Ex parte Daigle,
supra, p. 287.
The term of imprisonment in pursuance of any sentence shall,
unless otherwise directed in the sentence, commence on and from
the day of passing such sentence, but no time during which the
convict is out on bail shall be reckoned as part of the term of
imprisonment to which he is sentenced. Section 3 of the Prisons
and Reformatories Act, ch. 148, R. S. C. 1906. See R. v. Robin-
son, (1907) 12 C. C. C. 447.
eelease from further proceedings. 309
Kelease from Further Proceedings.
Any person convicted of any offence who has paid the sum
adjudged to be paid with costs, or has received a remission from
the Crown, or has suffered the imprisonment awarded, shall be re-
leased from all further, or other, criminal proceedings for the
same cause. This is provided for by sec. 1079 of the Code as
follows : —
1079. When any person convicted of any offence has paid the sum
adjudged to be paid, together with costs, if any, under such conviction, or.
has received a remission thereof from the Grown, or lias suffered the im-
prisonment awarded for non-payment thereof, or the imprisonment awarded
in the first instance, or has been discharged from his conviction by the
justice in any case in which such justice may discharge such person, he
shall be released from all further or other criminal proceedings for the
same cause.
1
1080. Nothing in this Part shall in any manner limit or affect His
Majesty's royal prerogative of mercy.
Imprisonment in x^ddition to Fine.
740. Where, by virtue of an Act or law so authorizing, the justice, by
his conviction, adjudges against the defendant payment of a penalty or
compensation, and also imprisonment as punishment for an offence, he
may, if he thinks fit, order that the imprisonment in default of distress
or of payment, shall commence at the expiration of the imprisonment
awarded as a punishment for the offence.
2. The like proceeding may be had upon any conviction or order made
in accordance with this or the last preceding section as if the Act or law
authorizing the conviction or order had expressly provided for a conviction
or order in the terms permitted by this or the last preceding section.
The conviction adjudged the defendant to pay a fine and costs
forthwith and in default of payment imprisonment unless the
fine and costs were sooner paid. The defendant moved to quash
the conviction on the ground that the conviction should have
adjudged the fine and costs to be levied by distress and that, for
want of sufficient distress only, could the imprisonment be ad-
judged. Held, the convicting justice was fully empowered to
make the adjudication he did, and that the conviction was in good
form. Ex parte Casson, (1897) 2 C. C. C. 483, and Ex parte
Gorman et al, (1898)4 C. C. C. 305.
Enforcing Adjudication.
Warrants of Distress and Commitment.
741. The justice making the conviction or order mentioned in para-
graph (a) o£ section seven hundred and thirty-nine may issue a warrant
of distress in Form 39 or 40. as the case requires, and in the case of a
310 ENFOHCEMENT OF ADJUDICATION.
conviction or order under paragraph (h) of the said section, a warrant in
one of the Forms 41 or 42 may issue.
2. If a warrant of distress is issued and the constable or peace officer
charged with the execution thereof returns (Form 43) that he can find no
goods or diattels whereon to levy thereunder, the justice may issue a
warrant of commitment in Form 44.
A warrant of distress founded upon a defective order oi con-
viction is bad. It should be warranted by the conviction. Day
V. King, 5 A. & E. 359 ; R. v. Wyatt, 2 Ld. Baym. 1189.
In reading this section (741) one naturally concludes that
it is only the justice who made the conviction, or order, who
can issue the distress warrant or warrant of commitment. But
upon reference to sec. 708 it will be seen that: —
(2) After a case has been heard and determined one justice
may issue all warrants of distress or commitment thereon, and
(3) It shall not be necessary for the justice who acts before
or after the hearing to be the justice, or one of the justices, by
whom the case is to be, or has been, heard or determined.
So that the warrant may be issued by the justice or justices
who made the conviction, or by any justice of the same county, or
place, having jurisdiction. And it may be issued by one justice.
A warrant of distress is to be executed by or under the direc-
tions of a constable or peace officer.
By sec. 2 (26) of the Code a peace oflBcer includes amongst
others mentioned, " any police oflBcer, police constable, bailiff,
constable, or other person employed for the preservation and main-
tenance of the public peace or for the service or execution of civil
process."
If the warrant be directed to all constables generally the law
is that no one in particular can execute it out of his own district
(unless it has been endorsed under sec. If AS), it being directed
to him only by his name of oflBce and no one having authority,
eo nomine, out of his district.
But, if the warrant is directed to a particular constable, or
peace oflficer, by name, he then may execute it anywhere within
the jurisdiction of the justice. R. v. Weir, 1 B. & C. 288.
If it is directed to more than one person in several or dis-
junctive terms it may be executed by any one of them, but if to two
or more jointly it seems they all must execute it. Foley, 8th ed.,
336.
When the person named in the warrant employs others to assist
him he should be so near as to be acting in the execution of the
warrant at the time of its execution. 5 Burns' Justice, 1132.
ENFOKCEMENT OF ADJUDICATION. 311
The warrant may be executed at any time while it is in force,
that is until it is fully executed, and it is not avoided by reason
of the justice who signed it dying, or ceasing to hold office. The
constable should receive and remove the goods at once. He will
be held for trespass if he remains an unnecessarily long time on the
premises of the defendant.
A person against whose goods a distress warrant has issued
may pay, or tender, to the constable or peace officer having the
warrant the sums therein mentioned, together with the costs and
charges of distress up to the time of payment and thereupon the
peace officer shall cease to execute the warrant. See sec. 747, post.
Unless he can find sufficient goods upon which he can realize
by sale enough to satisfy in full the amount required to be levied
and costs of distress the constable should not execute the warrant.
If part only of the amount required is realized the defendant
cannot subsequently be committed for the balance.
If part of the money has been realized, or paid, it must be
repaid to the defendant before a warrant of commitment can be
issued. Sinden v. Brown, 17 A. E. 173.
See further, as to warrants of commitment, the chapter on war-
rants and summons.
A warrant of commitment may be issued and executed before
drawing up the formal conviction : R. v. Dagenais, 18 C. C. C. 287.
Where the warrant of commitment in execution returned to a
writ of Habeas corpus states only a charge of the offence and not
a conviction therefor, the prisoner should be discharged. U. ■^.
Nelson, (1908) 15 C. C. C. 10.
A prisoner confined under an informal warrant of commit-
ment may be held in custody upon a proper warrant being subse-
quently issued: Lafleur v. Vallee, 19 C. C. C. 362. See also Be
Lehlanc, 22 C. C. C. 208.
A delay of 29 days in issuing the warrant of commitment to
imprisonment in default of payment of a fine, held not to affect
the validity of the warrant. R. v. McKinnon, 12 C. C. C. 414.
Distress and Commitment for Costs,
742. When any information or complaint is dismissed with costs, the
justice may issue a warrant of distress on the goods and chattels of the
prosecutor or complainant, in Form 45, for the amount of such costs ; and,
in default of distress, a warrant of commitment in Form 46 may issue.
2. The term of imprisonment in such case shall not exceed one month.
312 PROCEEDINGS PENDING EXECUTION OF DISTRESS WARRANT.
See cases cited under sees. 735 and 736, supra.
A warrant of distress can only be lawfully executed by the
person to whom it is directed and he cannot delegate his authority.
See Symonds v. Kurtz, 16 Cox 726.
By sec. 40 of the Code it is the duty of every one executing
any process, or warrant, to have it with him and to produce it if
required. See notes to previous sections.
Proceedings Pending Execution of Distress Warrant.
745. Whenever a justice issues a warrant of distress as hereinbefore
provided, he may suffer the defendant to go at large, or verbally, or by a
written warrant in that behalf, may order the defendant to be kept and
detained in safe custody, until return has been made to the warrant of
distress, unless the defendant gives sufficient security, by recognizance or
otherwise, to the satisfaction of the justice, for his appearance, at the
time and place appointed for the return of the warrant of distress, before
him or before such other justice for the same territorial division as shall
then be there.
746. Whenever a justice, upon any information or complaint, adjudges
the defendant to be imprisoned, and the defendant is then in prison under-
going imprisonment upon conviction for any other offence, the warrant of
commitment for the subsequent offence shall be forthwith delivered to the
gaoler or other officer to whom it is directed.
2. The justice who issued the same, if he thinks fit. may award and
order therein that the imprisonment for the subsequent offence shall com-
mence at the expiration of the imprisonment to which the defendant was
previously sentenced.
By sec. 1055 it is provided that, when an offender is convicted
of more offences than one, before the same Court or person, at
the same sitting, or when any offender tinder sentence, or under-
going punishment for an offence, is convicted of any other offence,
the Court, or person, passing sentence may on the last conviction
direct that the sentences passed upon the offender for his several
offences shall take effect one after the other.
A prisoner convicted of two offences at the same sittings of the
Court was sentenced on each offence to three months in gaol with-
out anything being said as to the sentences being concurrent, or
otherwise; having served one term of three months he applied for
an order for habeas corpus — the order was refused. Ex parte
Bishop, (1895) 1 C. C. C. 118.
It is submitted, however, that, notwithstanding this decision
which seems to stand alone, if the Court does not direct that the
sentences should " take effect one after the other," the presumption
is that they should run concurrently.
Under a summary conviction the term of imprisonment of a
person not then in custodv commences from the date of his ar-
PAYMENT OF FINE AND COSTS. 313
rest under the warrant of commitment. R. v. McDonald, (1898)
6 C. C. C. 1, and see Ex parte Foulkes, 15 M. & W. 613, and
Henderson v. Preston, 21 Q. B. D. 362.
A separate commitment for each conviction should be issued,
one to commence and take effect on the expiration of the other, if
so directed in the sentences.
By section 1056 of the Code, every one who is sentenced to
imprisonment for a term less than two years shall, if no other
place is expressly mentioned, be sentenced to imprisonment in the
common gaol of the district, county or place in which the sen-
tence is pronounced, or, if there is no common gaol there, then in
that common gaol which is nearest to such locality, or in some law-
ful prison or place of confinement, other than a penitentiary, in
which the sentence of imprisonment may be lawfully executed.
1056 (c) In the Provinces of Manitoba and British Columbia
any one sentenced to imprisonment for a term less than two years,
may be sentenced to imprisonment in any one of the common
gaols in those Provinces unless a special prison is prescribed by
law.
Payment of Pine and Costs.
747. Whenever a warrant of distress has issued against any person,
and such person pays or tenders to the peace officer having the execution
of the same, the sum or sums in the warrant mentioned, together with the
amount of the costs and charges of the distress up to the time of payment
or tender, the peace officer shall cease to execute the same.
2. Whenever any person is imprisoned for non-payment of any pen-
alty or other sum, he may pay or cause to be paid to the keeper of the
prison in which he is imprisoned, the «um in the warrant of commitment
mentioned, together with the amount of the costs and charges therein also
mentioned, and the keeper shall receive the same, and shall thereupon dis-
charge the person, if he is in his custody for no other matter.
3. Such keeper shall forthwith pay over any moneys so received by
him to the justice who issued the warrant.
The defendant appeared before the justice, acknowledged that
he was guilty of the offences with which he was charged and
asked what fines he would be required to pay, and was told by
the justice what the fines and costs would amount to, and there-
upon paid the amount to the justice. There was no adjudica-
tion by the justice upon this occasion and nothing was done to
dispense with the attendance of the defendant before the justice
at the hovir for which he was summoned to answer the charges
which liad been made against him. The defendant attended be-
fore the justice at the hour for which he had been summoned.
The informations had in the meantime been amended, charging
314 SURETIES TO KEEP THE PEACE.
the alleged infractions of the Act as second offences. The infor-
mations were read to the defendant as amended, and he pleaded
guiliy. He pleaded guilty on a further charge and was fined on
both charges, and paid the fines and costs. The defendant moved
to quash the convictions on the ground, amongst others, that the
justice had adjudicated upon the charges when he accepted the
fine and costs from him before the hour of trial. Motion was
dismissed. R. v. Eenaud, (1909) 15 C. C. C. 246.
Sureties to Keep the Peace.
748. Whenever any person is charged before a justice with any
offence triable under this Part which, in the opinion of such justice, is
directly against the peace, and the justice, after hearing the case, is satis-
fied of the guilt of the accused, and that the offence was committed under
circumstances which render it probable that the person convicted will .be
again guilty of the same or some other offence against the peace unless he
is bound over to good behaviour, such justice may, in addition to, or in
lieu of. any other sentence which may be imposed upon the accused, re-
quire him forthwith to enter into his own recognizance, or to give security
to keep the peace and be of good behaviour for any term not exceeding
twelve months.
2. Upon complaint by or on behalf of any person that, on account of
threats made by some other person or on any other account, he, the com-
plainant, is afraid that such other person will do him, his wife or child
some personal injury, or will burn or set fire to his property, the justice
before whom such complaipt is made may, if he is satisfied that the com-
plainant has reasonable grounds for his fears, require such other person to
enter into his own recognizance, or to give security to keep the peace, and
to be of good behaviour, for a term not exceeding twelve months.
3. The provisions of this Part shall apply, so far as the same are
applicable, to proceedings under this section, and the complainant and de-
fendant and witnesses may be called and examined, and cross-examined,
and the complainant and defendant shall be subject to cost^i, as in the case
of any other complaint.
4. If any person so required to enter into his own recognizance, or
give security as aforesaid, refuses or neglects so to do. the same or any
other justice may order him to be imprisoned for any term not exceeding
twelve months.
5. The Forms 48, 49 and 50, with such variations and additions as
the circumstances may require, may be used in proceedings under this
section.
The provisions of sub-sec. 1 of this section relate only to
persons charged before a justice with any offence triable under this
Part, that is by way of summary conviction.
The power here given to a justice is to be invoked by him:
(a) When in his opinion the offence charged is directly against
the peace; and when after hearing the case he is satisfied of the
guilt of the accused ; and,
(&) That the offence was committed under circumstances
which render it probable that the person convicted will be again
guilty of the same, or some other offence against the peace, unless
SURETIES TO KEEP THE PEACE. 315
he is bound over to good behaviour. A person may be bound over
in addition to any other punishment, or in lieu of it the accused
may be required forthwith to enter into his own recognizance or
to find sureties. The condition of the bond is that he will keep
the peace and be of good behaviour for any term not exceeding
twelve months.
It is well to notice here that the term must not exceed twelve
months, since under sec. 1058 of the Code a magistrate, and every
Court of criminal jurisdiction, may bind convicted persons over
in addition to any sentence for any term not exceeding two years.
The recognizance under sec. 1058 may be in Form 49 the same as
under sec. 748. Magistrates should bear this distinction in mind
as to the length of terms for which they can bind persons over.
When acting under this Part XV. the term must not exceed
twelve months, whilst under Part XVI. they may make the term
for any period not exceeding two years. How this ditference will
apply is illustrated as follows: — If a person is charged and con-
victed of common assault on summary conviction under this Part,
in addition, or in lieu of fine and imprisonment, the justice can
bind the person over to keep the peace for twelve months. Whereas
if the person had been charged before a magistrate under Part
XVI. with common assault as an indictable offence, which it is,
the magistrate could on conviction bind the person over to keep
the peace for two years.
Complaint of Threats.
Sub-sec. (2) of sec. 748 deals with complaints of threats made
by some other person against the complainant, and on account of
such threats, or on any other account, he, the complainant, is afraid
such other person will do him, his wife or child, some personal
injury, or will bum, or set fire to, his property. In such a case
the justice may, if he is satisfied the complainant has reasonable
ground for his fears, require such other person to enter into his
own recognizance, or to give security, that is, furnish sureties, to
keep the peace and be of good behaviour for a term not exceeding
twelve months.
The information or complaint to be made in proceeding under
this sub-sec. is Form 48. The information may either be laid by
the complainant himself, or by his duly authorized agent, or
attorney. The form should be strictly followed except that there
may be " such variations and additions as the circumstances may
require." The form given would have to be varied if, for exainple,
316 PROCEEDINGS ON COMPLAINT OF THREATS.
the complainant anticipated an injury to his wife or child or to
his p^ope^t)^ The words used and the circumstances under which
they were used should be set out with exactitude. If the exact
words cannot be given, the effect of the same must be given; the
information reads, " threaten the said C. D. in the words or to the
effect following:" It is an important ingredient in the informa-
tion that the complaint is not made, nor the sureties asked, from
any malice or ill will, but merely for the preservation of the com-
plainant's person, &c., from injury. Upon the complaint being
made the justice may either issue a summons to the defendant,
or a warrant for his arrest, the same as in any other proceedings
under this Part.
(3) The complainant and defendant and witnesses may be
called and examined and cross-examined, and all proceedings had
as in other cases under this Part. And both the complainant and
defendant shall be subject to costs as in the case of any other com-
plaint. That is, if the justice see fit to dismiss the complaint, he can
mulct the complainant m costs ; if, on the other hand, he is satis-
liedthat tne complainani has reasonable ground for his fears and
the defendant is required to enter into a recognizance, the justice
can also require the defendant to pay the costs of the prosecution.
(4) If the person so required to enter into his own recogniz-
ance, or to give security, refuses or neglects so to do, the justice
may order him to be imprisoned for any term not exceeding twelve
months.
The form of commitment in default of sureties is Form 50.
This warrant recites the complaint and the adjudication and
default, and commands the apprehension of the defendant. And
the term of imprisonment is fixed; if the defendant finds sureties
to keep the peace in terms of the order he can be liberated, other-
wise he must serve the prescribed tenii.
On habeas corpus to release a prisoner so committed, the Court
will not hear affidavits to controvert the facts recited in the war-
rant. R. V. Dunn, 12 A. & E. 599 ; R. v. Stanhope, 12 A. & E. 620.
The liberty of persons who have been imprisoned in default
of finding sureties must be made the subject of judicial inquiry
under the provisions of sec. 1059 of the Code, which is as fol-
lows : —
Proceedings When Person Remains in Prison for Two
Weeks.
1059. Whenever any person who has been required to enter into a
recognizance with sureties, to keep the peace and be of sood behaviour, or
RELEASE OF PERSON BOUND OVER. 317
not to engage in any prize-fight, has, on account of his default therein, re-
mained imprisoned for two weeks, the sheriff, gaoler or warden shall give
notice, in writing, of the facts, to a Judge of a superior Court, or to a
Judge of the County Court of the county or district in which such gaol or
prison is situate, or, in the cities of Montreal and Quebec, to a Judge of
the Sessions of the Peace for the district, or, in the Northwest Territories,
to a stipendiary magistrate.
2. Such Judge or magistrate may order the discharge of such person,
thereupon or at a subsequent time, upon notice to the complainant or other-
wise, or may make such other order as he sees fit, respecting the number
of sureties, the sum in which they are to be bound and the length of time
for which such person may be bound.
The sheriff, &e., must give the prescribed notice after the de-
faulter has remained imprisoned for two weeks. The Judge may
order, that is, it is in his discretion to do so, the discharge of
such person, but after notice to the complainant.
It is necessary in the warrant of commitment (Form 50) to
specify the time of imprisonment. But after he has been im-
prisoned for two weeks the sheriff, gaoler or warden shall give
notice in writing, &c. This is an imperative duty cast upon these
officials. Power is given to the Judge or magistrate to practically
T^^'^p"^ the order of the committing magistrate, since he may order
■tl^f pprson's discharge forthwith ^or at a subsequent time, and
tjiis_with. or without, notice^ to the complainant.
And he may make such order as he sees fit respecting the num-
ber of sureties, the sum in which they are to be bound, and the
length of time for which each person may be bound. It is virtu-
ally a trial de novo by way of appeal from the decision of the com-
mitting magistrate.
A warrant of commitment for default in finding sureties to
keep the peace must shew on its face that the complainant feared
bodily injury to himself or his wife or child, or injury to his
property from the defendant on account of his threat, and that
complaint was not made nor sureties required from any malice or
ill will, hut merely for the preservation of his person from injury,
or as the case may be. In this case these essential ingredients
were omitted from the warrant; the same was held bad and pris-
oner discharged. E. v. McDonald, (1897) 2 C. C. C. 64.
Verbal threats made to burn the complainant's building are
not an indictable offence, but the person making such threats can
be proceeded against under sec. 959 (3), (now 748) (2) of the
Code to find sureties to keep the peace. Ex parte Welch, (1898)
2 C. C. C. 35.
A threat to burn or destroy any building, &c., made in writing
is an indictable offence. See sec. 516 of the Code.
318 BINDING PERSONS OVER TO KEEP THE PEACE.
A warrant of commitment which omitted to state the amount
for which security should be given, or that the defendant had re-
fused or neglected to find sureties, was held illegal and invalid,
and the prisoner was discharged. Re John Doe, (1893) 3 C. C.
C. 370.
Where the prisoner was ordered to find sureties and to pay the
complainant's costs, and " if the said sum for costs were not paid
forthwith," the prisoner was adjudged to be imprisoned in gaol
for one month, unless the recognizance was sooner entered into
and the said sureties sooner found, and the said sum for costs
sooner paid, the prisoner, refusing to comply with the order,
was committed to gaol. Upon motion to discharge the prisoner
it was held that sees. 959 (3) (now 748) (3) and 870 (now 738)
gave the authoriiy and procedure respectively for imposing and
collecting the costs in a case like the present, and that under the
last mentioned section the prisoner could be imprisoned for the
non-payment only in default of distress. The order in awarding
imprisonment without distress as a means of recovering these
costs was, therefore^ bad as an excess of jurisdiction, and the
prisoner held thereunder was entitled to his discharge. R. v.
Power, (1902) 6 C. C. C. 378.
Where a stipendiary magistrate took a recognizance to keep
the peace in Form XXX. (now Form 49) without referring on
the face of the recognizance to the section of the Code under
which he was acting or otherwise shewing jurisdiction, it is to
be assumed that he was proceeding in his capacity of a justice of
the peace under section 959 (now 748) to which that form was
(then) alone applicable, and, the term exceeding twelve months,
the recognizance was held void. Re Sarah Smith's Bail, (1903)
6 C. C. C. 416.
Form 49 is no longer alone applicable to sec. 748, since by
sub-sec. (2) of sec. 1058, it is provided that " and such recogniz-
ance may be in Form 49." And by sub-sec. (5) of sec. 748, the
Forms 48, 49 and 50, with such variations and additions as the
circumstances may require, may be used in proceedings under this
section. No trouble can arise if justices take the precaution of
shewing their jurisdiction upon the face of the warrant and guide
themselves by the requirements of the different sections.
Justices should exercise due care and be satisfied that sufficient
grounds have been established for requiring sureties to keep the
peace, for if they make the order through error, or want of proper
consideration, although they have full jurisdiction in the premises.
JUSTICES EXCEEDING THEIE JURISDICTION. 319
yet they may render themselves liable to an action for damages.
Fulla/rton v. Switzer, 13 U. C. E. 575.
It would seem that there is no appeal from an order made by
a justice under sub-sec. (2) of sec. 74i8.
Sub-section (3) provides that the provisions of this Part shall
apply, so far as the same are applicable, to proceedings under this
section. There is nothing in the section as to a right of appeal,
and, in the absence of such express enactment, the provisions of
sec, 749 relating to appeals will not apply.
That section, unless it is otherwise provided in any special Act,
applies only to, (a) a conviction, (b) or an order made by a justice
for the payment of money, (c) or dismissing an information or
complaint. As an order made by a justice under sub-sec. (2)
of 748 does not come within either of these classes, there is con-
sequently no appeal. B. v. Mitchell, (1908) 13 C. C. C. 344.
As to the remedy of a person remaining in confinement under
such an order, see sec. 1059, p. 317, supra.
See dictum of Wallace/Co.J., at p. 70, in R. v. Doyle, (1906)
12 C. C. C. 69, and R. v. Tregarthen, 5 B. & A. 678.
If any person against whom an order is made requiring him to
enter into his own recognizance, or give security, refuses, or
neglects, so to do, and he is imprisoned for his default, such
person has all the rights preserved to him that any one else has
who has been committed to gaol, and may apply on habeas corpus
and certiorari for his release. B. v. Dunn, 12 A. & E. 599.
To justify a magistrate in binding over a defendant, there
must be an act on his part which, if not unlawful in itself, would
produce as a natural consequence an unlawful act by other persons.
Lord Alverstone, C.J., in Wise v. Denning, [1902] 1 K. B.,
at pp. 175-6.
The defendant gave evidence that complainant had used
threatening language towards him. It was found as a fact by the
justices that there was a real danger of a breach of the peace on
the part of both parties, and they accordingly bound them both
over to keep the peace and be of good behaviour. The defendant
had not lodged any formal complaint under oath against the com-
plainant. The latter appealed and the Cburt held that the justices
bad jurisdiction under the circumstances to make the order. R.
V. WiXTci/ns, [1907] 2 K. B. 3g0.
320 manner op taking recognizance.
Manner of Taking Eecognizancb.
When the justice has fixed the amount in which the defend-
ant and the sureties (if any) are to be bound, the recognizance
may be entered into before any other justice and not necessarily
the justice making the order. The recognizance must be made to
the King, and it must contain the name, place of abode, and trade
or calling of both principal and sureties, and the sums in which
they are bound. It is suflBcient to call the parties by their names
and to state the substance of the recognizance to them. The
parties need not sign, their verbal acknowledgment is sufficient.
After stating the substance of the recognizance to them, the usual
way is to say to the parties : " Are you content ?" and, upon their
giving their assent, the justice proceeds to sign the recognizance
himself, it being imperative that the justice taking a recognizance
should sign the same.
A recognizance is a matter of record presently so soon as it is
taken and acknowledged, although it be not made up. DM.
ch. 168.
If a man is bound by his recognizance to appear before a cer-
tain Court, and he fails to appear, the Court will not, even with
the consent of the Attorney-General, discharge his recognizance,
but may respite it until another time upon his application, if, in
the opinion of the Court, it is right so to do. R. v. Drummond, 11
Mod. 200. And in that case he will be bound to appear at such
enlarged time. But the Court will not discharge it or allow it to
be withdrawn unless they are satisfied that the condition of it has
been substantially complied with. See R. v. Paul, 6 C. & P. 323.
Appeal from Convictions or Orders.
749. Unless it is otherwise provided in any special Act under which
a conviction takes place or an order is made by a justice for the payment
of money or dismissing an information or complaint, any person who thinks
himself aggrieved by any such conviction or order or dismissal, the prose-
cutor or complainant, as well as the defendant, may appeal. —
(c) In the province of Ontario, when the conviction adjudges imprison-
ment only, to the Court of General Sessions of the Peace ; and in
all other cases to the Division Court of the division of the county
in which the cause of the information or complaint arose ;
(6) in the province of Quebec, to the Court of King's Bench, Crown
side;
(c) in the provinces of Nova Scotia, New Brunswick and Manitoba,
to the County Court of the district or county where the cause of the
information or complaint arose ;
(d) in the province of British Columbia, to the County Court, at the
sitting thereof which shall be held nearest to the place where the
cause of the information or complaint arose ;
(e) in the province of Prince Edward Island, to the Supreme Court;
APPEAIvS FROM CONVICTIONS OR ORDERS. 321
(/) in the province of Saskatchewan or the province of Alberta, to
the district Court at the sittings thereof which shall be held nearest
to the place where the cause of the information or complaint arose ;
(g) in the Northwest Territories, to a stipendiary magistrate; and,
(h) in the Yukon Territory, to a Judge of the Territorial Court.
2, In the ease of the provinces of Saskatchewan and Alberta, and of
the Northwest Territories and the Yukon Territory, the Judge or stipen-
diary magistrate hearing any such appeal shall sit without a jury at the
place where the cause of the information or complaint arose, or at the
nearest place thereto where a Court is appointed to be held.
Sub-sec. 2 relating to appeals in the district of Nipissing was
repealed in 1908 by 7 & 8 Edw. VII. ch. 18.
The right of appeal is granted to any person who thinks him-
self aggrieved by any conviction, or order, or dismissal, and the
prosecutor, or complainant, as well as the defendant, may appeal.
And it matters not whether the conviction adjudges imprisonment,
or a penalty by way of fine or both.
If a statute gives a right of appeal to " a person who shall
think himself aggrieved/' these words mean a person who is im-
mediately aggrieved by the act done and not ^ to one who is con-
sequentially aggrieved. R. v. JJ. of Middlesex, 3 B. & A. 938.
And such an enactment only means to give an appeal to any
one who has legal ground for saying that he is aggrieved. Harnip
V. Bayley, 6 E. & B. 218, 25 L. J. M. C. 107.
If trustees are enabled by a local Act to sue or be sued in the
name of one of them, he may appeal under the words, " party
grieved," though not personally aggrieved, and notice of appeal
and recognizance may be given and entered into by him only. R.
v. ././. Surrey, 5 A. & E. 701.
As to who is not a party aggrieved, see R. v. Edwards, 5 B. &:
Ad. 407; R. v. Dewhurst, 5 B. & Ad. 405.
A corporation may be a " person aggrieved." Cortis v. Kent
Waterworks Co., 7 B. & C. 314.
On an appeal from a summary conviction, the Court will not
quash it upon consent, unless the conviction is shewn to be wrong.
R. V. McCabe, 18 C. C. C. 217.
Justices are not required to give any information to a party
of his right to appeal, and he is bound to know the law in this
respect, or else lose the benefit of it.
A person who has pleaded guilty and been convicted and fined^
has a right of appeal, notwithstanding his plea of guilty. So far
as the facts relating to his guilt or innocence are concerned, he is-
c.c.p. — 21
3^2 WHAT PARTIES MAY APPEAL.
not a person aggrieved within the meaning of sec, 879 (now 749).
He cannot, therefore, call on the prosecutor to produce evidence
of his guilt at the hearing of the appeal, hut he may rely on any
valid legal objection to the conviction. Citing Harrup v. Bayly,
supra, R. v. Brook, (1902) 7 C. C. C. 216.
By paragraph (b) of sec. 749, the appeal in Quebec is to the
Court of King's Bench, Crown side.
Where an appeal was taken to the Court of Queen's Bench in
Quebec from a summary conviction for an offence against a pro-
vincial statute, it was held that the Court had no jurisdiction to
hear the appeal since appeals under sec. 879 (now 749) only
applied by virtue of sec. S40 (now 706) to offences, or matters,
over which the Parliament of Canada has legislative authority.
Lecours v. Hurtubise, (1899) 2 C. C. C. 521, and see Superior V.
City of Montreal 3 C. C. C. 379.
Section 706 provides that, subject 'to any special provision
otherwise enacted with respect to such offence, act or matter, this
Part XT. shall apply to, (a) Every case in Avhieh any person com-
mits, or is suspected of having committed, any offence or act over
which the Parliament of Canada has legislative authority, etc.,
and (b) Every case in which a complaint is made to any justice
in relation to any matter over which the Parliament of Canada
has legislative authority, etc.
So that, in the ab^nce of any provincial enactment making
Part XY. applicable to summary convictions for offences against
provincial Acts, no appeal will lie under sec. 749 from a summary
conviction for an offence against a provincial Act.
By paragraph (a), when appeals in Ontario are from convic-
tions adjudging imprisonment, the appeal lies only to the Court
of General Sessions of the Peace, and in all other cases to the
Division Court of the division in which the cause of complaint
arose.
In an appeal to the Court of General Sessions of the Peace in
Ontario, an appellant cannot demand a jury to try his appeal.
n. v. Milloy, (1900) 4 C. C. C. 116.
Appeals from summary convictions and the costs payable in
respect thereof are founded upon the statute law; and the pro-
\isions of the law regarding them in England and in this country
are essentially different.
Where an appeal is heard and determined against the appellant
by a Court of Quarter Sessions, the formal order need not be
drawn up at the same sittings, as the Court of General Sessions
WHAT PARTIES MAY APPEAL. 323
of the Peace is a continuing Court. The respondent's costs may
be taxed at the next sittings and a formal order drawn up and the
costs included therein nunc pro tunc, if necessary. Armour, C.J.,
at p. 460, in Bothwell v. Burnside, (1900) 4 C. C. C. 450.
Where a prosecution is instituted by a police officer in his
own name as informant for an offence against a municipal by-law,
such officer is a party to all proceedings, both before the magis-
trate and on appeal, and the municipality should not be named as
a party to the appeal, nor could costs be awarded in its favour,
lUd.
Where the agent of a society laid an information, and after
hearing the ease was dismissed, the society gave notice of appeal
in its own name. Held, that the informant himself was alone
entitled to appeal, and that the society had no locus standi to pre-
sent the appeal, as the society was not a party to the proceedings
before the justices. Canadian Society v. Lauzon, (1899) 4 C. C.
0. 354.
In appeals from convictions under the Nova Scotia Liquor
License Act, the effect of the statute is to require the County Court
Judge to try the case de novo, and to make such conclusions upon
the evidence as he thinks just, whether new evidence has been
taken before him or not. R. v. McNutt, (1900) 4 C. C. C. 392.
Followed in R. v. Baird, (1908) 13 C. C. C. 240.
An appeal lies from a conviction made under the Fisheries
Act of Canada, notwithstanding the special appeal to the Minister
of Marine and Fisheries given by the Act. This special appeal
may be made and taken after the disposal of the appeal to the
County Court. R. v. Townsend et al., (1901) 5 C. C. C. 143.
An appeal from a summary conviction under the Nova Scotia
Lord's Day Act, a pre-Confederation measure, lies only under the
provisions of the Criminal Code and not under the Summary Con-
victions Act, E. S. N. S. 1900, ch. 161. R. v. Bellefontaine, 22
C. C. C. 140.
In an appeal from a summary conviction, the decision of the
County Court is final and conclusive, both as to law and fact,
and after such decision the appellant is bound by the result of it,
and a superior Court has no jurisdiction to entertain an applica-
tion for a writ of habeas corpus. R. v. Beamish, (1901) 5 C. C.
C. 388.
The decision of the County Court on an appeal from a sum-
mary conviction, being res adjudicata between the parties, is a
har to the application for a " stated case." And, where the County
324 WAIVER OF RIGHT OF APPEAL.
Court has aflBrmed the conviction, it is not open to the accused
to have " a case stated " to a superior Court. R. v. Townshend
(No. 2), (1902) 6 C. C. C. 519.
In a hearing upon the merits of a writ of certiorari, it was
held that the petitioner in taking his writ of certiorari had waived
hifi right of appeal. Denault v. Rohida, (1894) 8 C. C. C. 501.
In an appeal from a conviction under the B. C. Summary
Convictions Act the conviction in question was bad on its face,
and on the hearing of the appeal a motion was made to quash it.
It was argued for the respondents that under this Act the Judge
must hear evidence and try the case de novo in any event.
After hearing argument on this point the County Court Judge
gave judgment allowing the appeal and quashed the conviction
with costs. Upon an application for mandamus to compel the
Judge to hear evidence and determine the appeal on the merits,
it was held by Irving, J., on the authority of R. v. J J. of Mid-
dlesex, 46 L. J. M. C. 22^5, 2 Q. B. D. 516, thati the Court had
no power to interfere by mandamus, as the Judge had heard argu-
ment on the question, and given a decision on the legal merit«;,
and the Court had no right to decide or incjuire whether such de-
cision was right or wrong, and a mandamus was refused with
costs. Strang v. Gellatly, (1904) 8 C. C. C. 17. See also R. v.
Koogo, 19 C. C. C. 56.
" The defendants lost their appeal through the fault and de-
sign of the convicting justice, and I think that this Court, having
the case before them, and being the supervisor of all inferior
Courts, and the only tribunal before which persons wronged, as
the defendants have Wn, can seek a remed}', and, as the circuni-
Btances are altogether exceptional and take the case out of the
principle of the cases which decided that a certiorari will not be
granted where an appeal has been given, should decide that the
rule be made absolute to quash the conviction, and that the de-
fendants are not deprived of their right to seek a remedy by
certiorari merely because they had taken some action for an ap-
peal, unless the right is taken away by statute, which, as I
have already said, is not the case where the Court below had no
jurisdiction. The facts and circumstances of this case clearly
bring it within the rule that a certiorari will go in eases where
another remedy is given, in exceptional cases." Hannixgton,
J., at p. 458, in Ex parte Cowan, (1904) 9 C. C. C. 454.
Where an appeal against a summary conviction was quashed for
irregularity due to the fault of the magistrate in returning the
STATUTORY REQUIREMENTS TO BE FOLLOWED. 325
deposit, the Court granted a writ of certiorari to remove the con-
viction notwithstanding the abortive appeal and the conviction was
quashed. R. v. Alford, (1902) 10 C. C. C. 61.
All requirements of a statute providing for taking and per-
fecting an appeal are deemed jurisdictional and must be strictly
complied with; want of jurisdiction which appears on the face
of the proceedings cannot be waived, and the Court, upon want
of jurisdiction so appearing, must dismiss the appeal whether
the point is raised by counsel for the respondent or not. Mac-
GiLLiVRAY, Co, J., at p. 407, in R. v. DoUver Mining Co., (1906)
10 C. C. C. 405.
The Court has jurisdiction to award costs to the respondent
on dismissing an appeal for want of jurisdiction through a de-
fect in the notice of appeal. Ihid.
When on appeal from a summary conviction the County Court
-Judge affirmed the conviction, but reduced the sentence and im-
posed the new sentence in the absence of the prisoner, it was held
that, the adjudication of imprisonment having been made in the
absence of the prisoner, it was irregular and that he must be dis-
charged. R. V. Johnston, (No. 2), (1906) 11 C. C. C. 10.
The above decision was disapproved in Johnston v. Robertson,
(1908) 13 C. C. 0. 452, a decision of the same Court.
If the statute creates an offence with an exemption or excep-
tion, the stMement of which is necessary to properly charge the of-
fence, and such exemption, or exception, is not negatived in the in-
formation, sec. 717 of the Code does not apply to cast upon the
accused the onus of proving that he is within the exception. In
such a case the appellate Court cannot amend the information
when the evidence before the magistrate fails to disclose the of-
fence of which, by the amendment of the conviction, it is sought'
to declare the defendant guilty. " In the present case the inform-
ation did not negative the exception to sec. 54 of the Liquor
License Act protecting sales to vendees holding requisitions for
the purchase of liquor for medicinal purposes. Therefore the pro-
vison of the Criminal Code casting upon the defendant the onus
of proving affirmatively that he was within this exception, did
not apply. The burden was upon the prosecutor to adduce evi-
dence that the sale in respect of which the charge is laid was not
within the exception of sec. 54. There was no evidence whatever
1)efore the u'.agistrate on this point." Axglix, J., at pp. 101.
102, in R. V. Boomer, (1907) 13 C. C. C. 98.
336 OBJECTIONS TO CONVICTIONS.
It should be noted, however, that section 767, under which
this case was decided, was amended in 1909, and probably this
case is no longer law. See that new section 717 at page 253,
supra.
For diverse views and divided opinions upon the question as
to the proper Court to which an appeal is to be made in Nova
Scotia under sees. 749 and 750 of the Code, likewise as to the
computation of time which should intervene between the con-
viction and the sittings of the Court hearing the appeal, see R. v.
Johnston, (1908) 13 C. C. C. 179.
The difficulties presented by the decision in R. v. Johnston
have been settled by the amendments made in 1909 to sec. 750 (a).
See p. 328, infra.
The justice having imposed the maximum fine on a first
conviction upon a plea of guilty, upon appeal the fine was re-
duced, it being held that upon an appeal from a summary con-
viction the Court is the absolute judge of facts as well as law, and
that it is the duty of the Court to deal with the case de novo on
its merits, following R. v. McNutt, 4 C. C. C. 392 ; R. v. Baxrd,
(190S) 13 C. C. C. 240.
It was objected on an appeal from a summary conviction, (1)
that the conviction did not shew that the liquor license by-law
was in force at the time of the alleged offence; (2) that the con-
viction must set out the particular acts relied on; (3) that the
conviction should include a specific amount as to costs of convey-
ing to gaol in default of sufficient distress. Held, all to be clearly
matters of form inasmuch as they can be removed by apt amend-
ments. Conviction was affirmed. R. v. Sing Kee, (1909) 14 C.
C. C. 420.
A defendant gave notice of appeal from a summary conviction
and subsequently, obtained an order for certiorari, also an order
nisi to quash the conviction. After these orders were obtained
the defendant served notice of his grounds of appeal. Held,
that under the circumstances the Court would not interfere by
certiorari as the appeal proceedings were pending. Order nisi
discharged. Ex parte McCorquindale, (1908) 15 C. C. C. 187.
The finding of a magistrate upon a question of fact within
his jurisdiction will not be reviewed by the Court upon certiorari,
but the defendant's remedy if any is by appeal. R. v. Urquhart,
(1899) 4 C. C. C. 256.
Section 4 of the Quebec Sunday Observance Act, which enacts
that fines for its violation may be recovered before certain magis-
PROCEDURE OX APPEAL. 337
trates, or two justices of the peace, " under the provisions of Part
XV, of the Criminal Code," has not the effect of embodying the
appeal provisions of Part XV. in the provincial statute. R. v.
Ouimet, (1908) 14 C. C. C. 136.
On an appeal from a summary conviction there is no author-
ity for a reference being made by the appellate Court to a super-
ior Court of criminal jurisdiction of a point of law arising on the
appeal, even if the question is whether or not the appeal was
lodged in due form. R. v. Mischawsky, (1909) 15 C. C. C. 364.
Where the right of appeal from a summary conviction has been
taken away by the statute the Court will not on certiorari con-
sider the weight of evidence, or revise the decision of the magis-
trate as to guilt, unless there vi^as a complete absence of evidence
as to some essential element of the offence. R. v. Duhuc, (1909)
15 C. C. C. 353.
Proceduee on- Appeal.
" 750. Unless it is otherwise provided in the special Act, —
" (a) if a conviction or order is made more than fourteen days before
a sittings of a Court to which an appeal is given, such appeal shall
be made to that sittings ; but if the conviction or order is made
within fourteen days of a sittings, the appeal shall be made to the
second sittings next after such conviction or order : Provided that
in the province of Nova Scotia the appeal shall be to a sittings of
the Court in the count.y where the cause of the information or com-
plaint arose ; in the one case to the sittings next after and in the
other to the second sittings after the conviction or order ;
" (h) the appellant shall give notice of his intention to appeal by
filing in the office of the clerk of the C«urt appealed to. a notice
in writing setting forth with reasonable certainty the conviction or
order appealed against, and the Court appealed to. within ten davs
after the conviction or ordei" complained of, and by serving the
respondent and the justice Avho tried the case each with a copy of
such notice ;
" (r) the appellant, if the appeal is from a conviction or order ad-
.iudging imprisonment, shall either remain in custody until the hold-
ing of the Oourt to which the appeal is given, or shall within the
time limited for filing a notice of intention to appeal, enter into a
recognizance in Form 51 with two sufficient sureties before a County
Judge, clerk of the peace or justice for the county in which such con-
viction or order has been made, conditioned personally to appear at
the said Court and try such appeal, and to abide the judgment of
the Court thereupon, and to pay such costs as are awarded by the
Court ; or if the appeal is from a conviction or order whereby a
penalty or sum of money is adjudged to be paid, the appellant shall
within the time limited for filing the notice of intention to appeal,
in cases in which imprisonment upon default of payment is directed,
either remain in custody until the holding of the Q)urt to which the
appeal is given, or enter into a recognizance in Form 51 with two
sufficient sureties as hereinbefore set out, or deposit with the justice
making the conviction or order an amount sufficient to cover the
sum so adjudged to be paid, together with such further amount as
euch justice deems sufficient to cover the costs of the appeal ; and,
in cases in which imprisonment in default of payment is not directed.
328 ABUSE OF EIGHT OF APPEAL.
deposit with such justice an amount sufficient to cover the sum so
adjudged to be paid, together with such further amount as such
justice deems sufficient to cover the costs of the appeal ; and upon
such recognisance being entered into or deposit made, the justice
before whom such recognizance is entered into or deposit made shall
liberate such person if in custody ;
"(d) in case of an appeal from the order of a justice pursuant to
section six hundred and thirty-seven for the restoration of gold or
gold-bearing quartz, or silver or silver ore, the appellant shall give
security by recognizance to the value of the said property to prose-
cute his appeal at the proper sittings of the Ck>urt, and to pay such
costs as are awarded against him."
TJie above is section 750 as amended in 1909 and 1913. The
chief changes relate to the provisions in paragraph (a) as to ap-
peals in Xova Scotia, and in paragraph (6) as to the service of
the notice.
The outstanding defect in these provisions for appeal is that
through M-ant of proper restriction the right is frequently abused
by a class of people who represent the worst element in any
country.
Eeference is here made to appeals from convictions for vag-
rancy coming under paragraphs (i), (j), {Jc), and (l) of sec. 338
of the Code.
Both men and women convicted for the offences covered by
these paragraphs, who can raise the necessan,- money, employ a
law)-er who gives the notice of appeal required and then applies
to any justice, generally a justice who is an entire stranger to the
facts of the case, or the character of the person who has been
convicted, and tliis justice accepts the bail offered often without
any affidavit of justification (since it is in his discretion whether
he yriW require it or not) : the recognizances are entered into, or
deposit made, and in due course the justice issues his order for
the liberation of the accused. This order is delivered to the gaoler
and presto the prisoner is released. And it is an open boast
among this class of people that any one who has the money and
can hire a lawyer can get out of gaol. After their release, they
walk the streets of the cit}', and, as they term it, ' give the laugh
to the police.'
When the hearing of the appeal comes on the appellant fre-
quently is not present and cannot be found, having departed hence ;
the bail are found to be men of straw, and the ends of justice
have been defeated.
All this reflects upon our administration of justice and lowers
the respect for the law in the very class of people it is most
necessar\- to control.
NOTICE OF APPEAL AND SERVICE THEREOF. 339
'No desire is expressed that this class of people should be de-
prived of their right of appeal — on the contrary — ^but what is sug-
gested and earnestly advocated is that the procedure relating to
their appeals should be so amended and regulated as to provide
against the farcical proceedings that frequently obtain as the law
now stands.
A simple remedy would be a provision that no appeals should
be allowed from convictions under sec. 238, unless leave therefor
has been first applied for and granted by a Judge of the County
Court, and after notice of such application had been served upon
a representative of the Crown, and after the Judge has read the
evidence taken before the convicting justice. Also that, if leave
is granted, bail should be fixed by the Judge and an order made
providing that the sureties offered should justify.
Notice of Appeal.
The notice of intention to appeal must be filed in the oflSce
of the clerk of the Court appealed to. A copy must be served
upon both the respondent, and the justice who tried the case.
Since the amendment of 1913 it is no longer suflScient to serve
one or the other.
Where two justices sitting together are required for a convic-
tion by the particular statute, a notice of appeal from the con-
viction must be served on both justices, or the appeal will be
quashed. R. \. Edelston, 17 C. C. C. 155.
The notice must be in writing and must set forth with rea-
sonable certainty the conviction, or order, appealed against and
the Court appealed to, that is the name of the Court and the
date of its sittings at which the appeal is to be heard, and should
be addressed to the prosecutor and to the justice or justices who
tried the case.
The notice must be served and filed within ten days after
the conviction or order complained of, and the Court appealed to
has no jurisdiction to extend the time for service of the notice.
E. V. White, 19 C. C. C. 156.
If the last of the ten days falls on Sunday, the notice may be
given on the following day by virtue of sec. 31 {It) of the Inter-
pretation Act, E. S. C. 190'6, c. 6. E. v. Trottier, 23 C. C. C. 102.
The notice is too late, though mailed to the clerk of the Court in
time for him to receive it on the tenth day at hie post office, if,
by reason of his own office being officially closed on that day, he
330 NOTICE OF APPEAL AND SEKVICE THEREOF.
did not in fact receive it until the next day. R. v. Green, 22 C.
C. C. 155.
It is no longer necessary to serve a notice setting forth the
grounds of appeal.
A notice of appeal from a summary conviction, not having
been addressed to any person, was held insuflBcient to give juris-
diction, and declared invalid, and appeal quashed accordingly.
Cragg v. Lamarsh, (1898) 4 C. C. C. 246; and see Keohan v.
Cool', 1 N". W. T. Rep. 125.
Proof of service on the justice must be strict. PaKkala v.
Eannuksala, 20 C. C. C. 247.
The form of notice N.N.N, that appeared in the schedule of
the Code before the revision in 1906 has been omitted. So that
any persons preparing a notice will have to exercise their own
skill and judgment and follow closely the requirements of this
section. Vide " contents of notice," post.
If notice of appeal has not been given in time and the recog-
nizance entered into, or other matter requred to be done before
the appellant can proceed with his appeal, the objection could
probably be taken at any time, for it would shew that the Court
had no jurisdiction to entertain the appeal. R. v. Crouch, 35 TJ.
C. E. 433-9.
Notice had been duly given and admission thereof made by
the respondent and the recognizance had been properly entered
into and filed with the clerk of the peace. At the hearing counsel
for the respondent objected that there had been no proof of the
recognizance and afterwards continued the case, not pressing his
objection, and only renewing it at the close of the case. It was
held that this constituted an admission that the necessary recog-
nizance had been entered into. Ihid.; and see R. v. Essery, 7 P.
E. 290.
The notice was neither addressed to, nor served upon the
prosecutor, but was addressed to and served upon one of the jus-
tices who signed the conviction, and by aflBdavit it appeared that
when the notice was so served this justice was verbally informed
that it was for the prosecutor. Held, notwithstanding the fact
that the justice, when served, was told it was for the respondent
(prosecutor), that this did not cure the defect. Hostetter v.
Thomas, (1899) 5 C. C. C. 10. •
The meaning of appealing is giving notice to your adversary
of your intention to appeal, per Jessel, M. E., in Ex parte Saf-
fery, 5 Ch. D. 365, approved in appeal in Christopher v. Croll, 16
UPON WHOM NOTICE MUST BE SERVED. 331
Q. B. D, 66 (C.A.), where the Court held an appeal was
" brought " when notice of appeal was served.
The appellant gave notice of appeal to the Supreme Court by
way of stated ease; that appeal coming on it was dismissed for
non-compliance with statutory conditions precedent. The appel-
lant then gave notice of appeal to the County Judge. Held, in
view of the provisions of sec. 96 of the Act, ch. 176, R. S. B. C.
1897, that the appellant, having stated a case for the opinion of
the Supreme Court, had thereby abandoned his right of appeal to
the County Court. Appeal quashed. CooTcsley v. Toomaten Oota,
(1901) 5 C. C. C. 26.
A notice of appeal under the B. C. Summary Con. Act is suffi-
cient if addressed to the convicting magistrate only, and served
on him only. The notice need not recite that the appellant is
a " person aggrieved " by the decision appealed from. R. v. Jor-
cUin, (1902) 5 C. C. C. 438.
The section of the B. C. Act upon which that case was de-
cided, 71, provides that the appellant shall give to the respondent,
or to the convicting justice /or him, a notice in writing, &c., &c.
In Ex parte Doherty, (1885) 25 N. B. E. 38, the appeal was
taken under the provisions of Statute of Canada, 33 Vic, ch. 27.
This Act provided for the notice being given to the justice for
the prosecutor. In his judgment Allen, C.J,, said : '' I think
the applicant did all that was necessary to perfect his right of ap-
peal when he gave the notice of appeal to the police magistrate,
and entered into the recognizance required by the Act 33 Vic, ch.
27. The second sub-section of that Act directs that a person
intending to appeal from a conviction, or order, of a justice
shall give to the prosecutor, or complainant, or to the convicting
justice, or one of the convicting justices for him, a notice in writ-
ing of such appeal within four days, &c. . . . The notice of
appeal in this case was given to the police magistrate and it cor-
rectly describes the conviction against which the party intended
to appeal. But it is contended that the notice should have stated
on its face that it was given to him for the prosecutor. I do
not think this was necessary. The Act having stated that the
notice might be given to the convicting justice for the prosecutor,
the justice must be taken to know for what purpose it was given
to him and the form of the notice prescribed by the Act allows of
such variations as are necessary to meet such case."
In R. V. Jordan, supra. Me. Justice Irving said (p. 441) :
" The decision Ex parte Doherty seems to me right and more con-
332 CONTENTS OF THE NOTICE.
sistent with tlie views expressed by the late Mr. Justice Gwynne
in R. V. Nichol et al, (1896) 40 U. C. E. at p. 79: *We must
read ihese notices not with a critical eye, but liberally ut res
magis valeat, and so as to uphold, not defeat, the right of appeal
given to parties summarily convicted,* and I think, between the
conflicting decisions, I ought to be guided by the decision of the
Supreme Court of New Brunswick in this matter, particularly so,
when so eminent a Judge as the late Mr. Justice King assented
to the decision."
In R. V. Jordan, the notice was addressed only to the convict-
ing magistrate, and not to the prosecutor, but it was served upon
both the magistrate and upon the solicitors for the informant or
prosecutor.
In Re Doherty the notice was directed to and served only
upon the magistrate.
The importance of these decisions is somewhat lessened by
the fact of the change in the section to what it now reads, already
noted, namely, that the provision which occasioned so much dif-
ference of opinion is no longer a part of the Code, and that under
the section as it now stands the notice must be served upon both
the prosecutor and the justice who tried the case. Nothing is said
as to whom it is to be directed. However, it is well in this, as in
other matters of procedure, to exercise a little common sense and
the suggestion is made that the notice should be addressed to botli
the prosecutor and the justice, as both have to be served.
The office of the notice is to inform the respondent and the
justice that a particular conviction is appealed against and care
should be taken that they cannot be misled on this subject, and
therefore the names of the appellants, the intent to appeal, the
sessions to which the appeal is to be made, as well as the nature
of the conviction itself, should be contained in the notice. Notices
will not be critically construed, and if they substantially give the
respondents the requisite information they will, apart from statu-
tory provision, he held sufficient. R. \. J J. Denbighshire, 9
Dowl. P. C. 509; R. v. JJ. Oxfordshire, 4 Q. E. 177; R. v. West
Houghton, 5 Q. B. 300.
All the statutory conditions must be accurately fulfilled. R.
V. Ah Yin (No. 1), (1902) 6 C. C. C. 63. Pdey, 8th Ed., p. 382.
Held, that notice which had been served upon two of the jus-
tices who had taken the information, issued the summons, heard
the evidence and signed the conviction, the other J. P. having
OBJECTIONS TO NOTICE — SEEVICE OF NOTICE. 333
signed the conviction at a subsequent time, was sufficient, follow-
ing Ex parte Doherty, supra; R. v. Davitt, (1904) 7 C. C. C. 514.
N'otice objected to on the ground that it did not state that
appeal was being made to " the next sittings " of the Judge in
Battleford but only gave notice that the appellants would appeal
to the Judge sitting at Battleford. Held, that the notice did not
comply with the statute and was insufficient. R. v. Brimacombe,
(1905) 10 C. C. C. 168.
A notice of appeal in typewriting is a notice in writing within
the meaning of the section (880), now (750). And a notice of
appeal is not invalid because it is not signed. R. v. Bryson,
(1903) 10 C. C. C. 398, following R. v. Nichol, 40 U. C. R 46.
There being no form of notice now and nothing being said
in sec. 750 (b) as to the notice requiring to be signed, presum-
ably no signature is required: however, it is better to be on the
safe side and see that all notices are signed.
It is the appellant who is to give the notice; the appellant may
be "any person who thinks; himself aggrieved by such conviction
or order, or dismissal" (sec. 749) ; it may therefore not be the
prosecutor himself who appeals but some one else " who is ag-
grieved." It is well then, if for no other reason than the pur-
poses of identification, that the appellant should sign the notice,
either personally or by his solicitor.
The respondent could not be found and a copy of the notice
of appeal was sent by registered mail to the respondent addressed
to Edmonton, and another addressed to "Winnipeg, and a copy
served on his ad;vocate and another on a grown person at the last
known place of abode of the respondent, which was a boarding
house.
Held, that such service was not authorized by sec. 750 of the
Code, and that personal service is intended by that section, and
leave to allow the substitutional service as above was refused.
Olsen V. Cameron, (1907) 13 C. C. C. 193. But see R. v. Trot-
tier, 22 C. C. C. 102, where substituted service on a person in
charge of the office of the person to be served was allowed.
Contents of the Notice.
As sec. 750 now reads, the essential ingredients of the notice
are: (1) it must shew the intention to appeal; (2) and set forth
with reasonable certainty the conviction or order appealed against;
and (3) the Court appealed to and to what sittings thereof.
334 STATUTORY PROVISIONS TO BE STRICTLY FOLLOWED.
Where tlie notice stated an intention to appeal to the borough
sessions (the appeal properly being to the county sessions), it was
lield that these words might be rejected as surplusage if they did
not mislead. R, v. JJ. Buckinghamshire, 4 E. «&; B. 260; R. v.
Liverpool, 15 Q. B. 1070.
If acted upon then the notice could not be taken as good for
the county sessions afterwards. R. v. J J. Salop, 24 L. J. M. C.
14, 4 E. & B. 257.
All the statutory provisions must be accurately fulfilled so
that, where a statute gives an appeal to a person by any particular
description, the notice should bring the appellant within it; thus,
when a statute gives a right of appeal to a party aggrieved on
giving notice in writing, the notice should state that the party
appealing is aggrieved by the conviction. R. v. JJ. West Rid^
ing Yorkshire, 7 B. & C. 678; R. v. Blackawton, 10 B. & C. 792.
In R. V. Jordan, 5 C. C. C. 438, on appeal under the B. C.
Summary Convictions Act, Mr. Justice Irving held that it was
not necessary that the notice should state that the appellant was
the " person aggrieved," the Act and the form in the schedule not
re<juiring that to be alleged.
If giving notice be prevented by the act of God, as by the
death of the person to whom it was to be given, notice will be dis-
pensed with. R. V. JJ. Leicestershire, 15 Q. B. 8S.
Where full notice of an appeal has been given and there is
no countermand of the notice, the sessions are justified in refus-
ing to respite the appeal on the ground of the absence of a wit-
ness, unless the appellant pays the costs of the day. R. v. JJ.
Monmouthshire, 1 B. & Ad. 895,
Criminal proceedings do not lapse by the death of the in-
formant. R. V. Truelove, 5 Q. B. D. 336.
If the appellant has brought on his appeal for hearing and it
has been dismissed, though only for an informality, he cannot give
a second notice of appeal, even within the time originally allowed
for appealing. R. v. JJ. West Riding of Yorkshire, 3 T. R. 776.
In the same case, Bullen, J., at p. 779, said that, if the appellant
had withdrawn his first notice without going on with his appeal,
he might then have given a second notice, if within the six
months.
Recognizance or Deposit.
If the appeal is from a conviction, or order, adjudging im-
prisonment the appellant shall either remain in custody until the
RECOGNIZANCE OE DEPOSIT. 335
holding of the Court to which the appeal is given, or he shall,
within the time limited for filing a notice of intention to appeal,
(that is within ten days after the conviction or order has been
made), enter into a recognizance in Form 51 with two sufficient
sureties before a County Judge, clerk of the peace, or justice for
the county in which such conviction or order has been made.
The requirements as to the recognizance are: (a) it must
be entered into within ten days after the conviction or order com-
plained of; (b) it must be entered into by the appellant with
two suffi'cieni; sureties; (c) and can be entered inlto before either
a County Judge, a clerk of the peace, or a justice of the peace for
the county in which the conviction or order has been made; (d)
it must be in Form 51; (e) the condition shall be that the appel-
lant will personally appear at the Court appealed to and try such
appeal and will abide the judgment of the Court thereupon and
will pay such costs as. are awarded by the Court.
It will not suffice that the recognizance be entered into in
Court on the day for hearing the appeal, it must be entered into
and filed before the sittings of the Court to which the appeal
is made. See Kent v. Olds, 7 TJ. C. L. J. 21 ; Re Myers & Won-
nacot, 23 U. C. E. 611; Bestwich v. Bell, 1 Terr. L. E. 193; R.
V. Crouch, 35 TJ. C. E. 433, and R. v. King, (1900) 4 C. C. C. 128.
The sureties must be sufficient sureties. This is a matter
for the justice taking the recognizance to fully satisfy himself
upon and he should be very particular in this regard. It is not
necessarp that the sureties should make affidavits of justification,
unless the justice chooses to require it, the matter of sufficiency
being left entirely to the justice. See Cragg v. Lemarsh, supra,
4 C. C. C. 246.
When it is remembered that, upon the recognizance being en-
tered into, the justice shall liberate such person if in custody, it
will be recognized as most important that the sureties should be
men of substance and freeholders.
The recognizance must be in Form 51, since it is not stated
that it may be in that form or one like it, the words of the section
being imperative: "Shall . . . enter into a recognizance in
Form 51." In looking at Form 51 it will be seen that a form
is given of a notice of the recognizance to the appellant, and
his sureties. There is nothing in sec. 750 or elsewhere in the Code
making it necessary for the respondent ta serve this notice, and
although it is made part of Form 51 the respondent could not be
prejudiced if the appellant neglects to add it to the recognizance.
33<5 APPELLANT MUST APPEAR IN PERSON.
It is not necessary that the recognizance should be entered
into before the justice who made the conviction or order; any
justice having jurisdiction, or County Judge, or clerk of the
peace may take it.
The condition of the recognizance is that the appellant will
"personally appear" and try the appeal and abide by the judg-
ment of the Court upon such appeal, and pay such costs as are
by the Court awarded.
Held, that the omission of the word " personally " makes the
recognizance defective. Ex parte Sprague, (1903) 8 C. C. C. 109.
The omission, by a clerical error, whereby the amount of the
appellant's personal obligation was not filled in in the recogniz-
ance, held not fatal to it, when the amount of the sureties' obliga-
tion was filled in. E. v. Koogo, 19 C. C. C. 56.
The necessity for the condition that the appellant shall appear
personally will be manifest to one as proper, when it is recol-
lected that the appellant has been liberated from custody till
his appeal is heard against a conviction, or order, awarding him
imprisonment; if his appeal is dismissed and he is not personally
present in Court, how could the conviction or order appealed
against be enforced against him ? It is therefore requisite that the
appellant should attend in person and be present in Court during
the whole time the appeal is being heard ; it will not suflBce that he
is represented by counsel.
The appeal and the giving of a recognizance under this sec-
tion operate as a suspension, or stay of proceedings, for the
enforcement of the penalties imposed by the conviction, either by
way of imprisonment, or pecuniary penalty. Simington y. Col-
hourne, (1900) 4 C. C. C, 367; R. v. Trotiier, 22 C. C. C. 102.
Where several defendants appealed from a summary convic-
tion and the recognizance entered into was that of the appellants
and only one surety. Held insufiicient and appeal quashed. B. v.
JosepJi et al., (1900) 4 C. C. C. 126.
An appeal is not a general, or common law, right. It is an
exceptional provision enacted by a statute, and to be availed of
the conditions imposed by the statute must be strictly complied
with. They and all of them are conditions precedent. A notice
that the persons convicted intend to appeal is not an appeal.
It is an idle formality if not accompanied either by the surrender
of the accused into custody, or b}-; their entering into recognizance
with two sufficient sureties that they will try the appeal and
APPEAL WHEN PENALTY IMPOSED. 337
abide by the judgment of the Court therein and pay such costs aa
may be awarded against them. Hall^ J., ibid., p. 127. As to
giving notice of appeal being an appeal, see Ex parte Saffery,
supra, and R. v. Lynch, 12 0. E. at p. 378.
The condition in the recognizance entered into was to "per-
sonally appear at the next general sessions and enter an appeal
against, etc.," the words " and try " being omitted after the
word " enter," without which it was urged the chairman of the
general sessions had no authority to hear the appeal. Held, that,
the appeal having been entered according to the condition in the
recognizance, and the appellant having appeared to prosecute the
appeal, the sessions could not refuse to hear the appeal. R. v.
TucJcer, (1905) 10 C. C. C. 217.
Appeal where Penalty Imposed.
Deposit in lieu of recognizance.
If the appeal is from a conviction, or order, adjudging a pen-
alty, or sum of money, to be paid and in default imprisonment,
the appellant shall within the same time limit, viz., within ten
days after the conviction or order, is made, either remain in cus-
tody or enter into a recognizance in Form 51 with two sufficient
sureties, the same as where the imprisonment alone was adjudged
and as hereinbefore set forth, or deposit with the justice making
the conviction or order an amount sufficient to cover the sum ad-
judged to be paid together with such further amount as such jus-
tice deems sufficient to cover the costs of appeal.
In cases in which imprisonment in default of payment is not
directed, a deposit shall be made with the justice of an amount
sufficient to cover the sum adjudged to be paid together with
such further amount as the justice deems sufficient to cover the
costs of appeal.
In the first class of cases where the appeal is from a convic-
tion or order adjudging a penalty, or payment of a sum of
money, and in default of payment imprisonment, the appellant
has three courses open to him: (1) to remain in gaol; (2) to en-
ter into a recognizance with two sufficient sureties, or (3) to make
the deposit with the justice. And where no imprisonment is im-
posed he makes a deposit only.
The deposit must be made within the ten days after the con-
viction or order; it must be made with the justice who made the
338 AMOUNT OP DEPOSIT — HOW MADE.
conviction or order, and it must be of an amount suflBcient to
cover the fine, or sum, adjudged to be paid and also such further
sum as the justice deems sufficient to cover the costs of appeal.
In fixing the amount sufficient to cover the costs of appeal
the justice should include the witness fees likely to be paid. The
amount to be deposited for costs will differ in the different pro-
vinces, and the justice should inform himself as to what these
costs are usually taxed at before he fixes the amount, and it is well
to be on the safe side and fix a liberal amount.
Where a deposit in lieu of recognizance is not made until after
the sittings of the appellate Court for which notice was given, the
appeal connot be heard and should be quashed. McShadden v.
Lachance, (1901) 5 C. C. C. 43.
^' I think that the obligation laid on an appellant by the Code
extends beyond the mere leaving of the money with the justice.
Its return by the justice into Court, before the time for hearing
the appeal, must in some way have been secured, and even if what
was done had been sufficient it could not be established by affi-
davit." McDouGALL, Co. J., at p. 25, in R. v. Gray, (1900) 5 C.
C. C. 24. In default of the justice having paid the deposit into
Court the appeal was quashed.
The provisions of sec. 750 as amended in 1909, and ae it now
stands, providing for a deposit in lieu of recognizance, were in
the original Code, sec. 880 (c). In the amendment made to this
section in 1905, al] the provisions relating to deposit were elimin-
ated. But they have been restored by the amendment of 1909,
and now the procedure as to appeals, in so far as a deposit is con-
cerned, is ithe same as in the original Code.
However, in amending the Code in 1909, and re-enacting para-
graph (c) of sec. 880 of the original Code, the provisions of sec.
888 of the original Code in regard to the justice forwarding the
deposit have been omitted. Section 888 amongst other things pro-
vided that, if on an appeal a deposit of money had been made, the
justice should return the deposit to the Court appealed to. And,
as we have seen in R. v. Gray, supra, the omission upon the part
of the justice to return the deposit into Court invalidated the ap-
peal. Presumably the provision of sec. 88i8 has been omitted ad-
visedly. At all events as the Code now stands there is no pro-
vision in it requiring the justice to return the deposit into Court,
and perhaps the case of R. v. Gray, supra, is no longer law.
Section 757, which replaces sec. 888, provides that the justice
shall transmit the conviction, or order, to the Court to which
TRANSMISSION OF DEPOSIT BY JUSTICE. 339
the appeal is given before the time when an appeal from such con-
viction, or order, may be heard, there to be kept by the proper of-
ficer among the records of the Court.
If the justice is required to transmit the conviction, or order,
it seems reasonable that he should also transmit all else connected
with the conviction. As it is a condition precedent to the appeal
being heard that the deposit should be made with the justice, it
follows that proof of this fact must be before the Court appealed
to. How otherwise can the appellate Court know if the appeal
has been perfected?
In R. V. Gray, supra. Judge MacDougall held that, " even if
what is done had been sufficient, it could not be established by af-
fidavit."
It might be argued that, in the absence of any specific enact-
ment providing for the itxansmission by the justice of the deposit,
it is not necessary that the deposit should be in Court. As against
this it is to be remembered that the right of appeal is by statutory
enactment only, and is not an inherent right, and it should ap-
pear upon the face of the -proceedings that the statutory condi-
tions precedent have been complied with, otherwise the Court will
dismiss the appeal for want of jurisdiction.
How can the deposit be available for the purposes for which
it was deposited, if the money is not in the custody of the Court
to which the appeal is made? It is possible, therefore, that, even -
in the absence of a re-enactment of the provisions of the original
section 889, which specifically enacted that the justice should re-
turn the deposit to the Court appealed to, it may* be held that it
is still requisite and necessary that such return should be made
by the justice and the appellant would be on the safe side if he
sees that it is done. See R. v. Neuherger, (1902) 6 C. C. C. 142,
and R. v. DoUver, (1906) 10 C. C. C. 406, and see sub-sec. (2)
of sec. -751.
Hearing of the Appeal.
751. The Court to which such appeal is made shall thereupon hear
and determine the matter of appeal and make such order therein, with or
without costs to either party, including costs of the Court below, as seems
meet to the Court, and, in case of the dismissal of an appeal by the defend-
ant and the affirmance of the conviction or order, shall order and adjudge
the appellant to be punished according to the conviction or to pay the
amount adjudged by the order, and to pay such costs as are awarded, and
shall, if necessary, issue process for enforcing the judgment of the Oourt.
2. In any case where a deposit has been made as provided in para-
graph (c) of section seven hundred and fifty, if the conviction or order is
affirmed, the Court may order that the sum thereby adjudged to be paid,
together with the costs of the conviction or order, and the costs of the
340 HEARING OF APPEAL AND ADJOURNMENT.
appeal, shall be paid out of the money deposited, and that the residue, if
any, shall be paid to the appellant; and if the conviction or order is
quashed, the Court shall order the money to be repaid to the appellant."
3. The Court to which such appeal is made shiiU hK^-c power, if neces-
sary, from time to time, by order endorsed on the conviction or order, to
adjourn the hearing of the appeal from one sittings to another, or others,
of the said Court.
4. Whenever any conviction or order is quashed on appeal, the clerk
of the peace or other proper oflScer shall forthwith endorse on the convic-
tion or order a memorandum that the same has been quashed.
5. Whenever any copy or certificate of such conviction or order is
made, a copy of such memorandum shall be added thereto, and shall, when
certified under the hand of the clerk of the peace, or of the proper officer
having the custody of the same, be sufficient evidence, in all Courts and for
all purposes, that the conviction or order has been quashed.
This section was also amended in 1909 by sub-see. 2 being
repealed, and the present enactment being substituted.
The hearing of the appeal is by the Court, that is by the Judge
alone, as there is no right to a jury. See R. v. Malloy, (1900)
4 C. C. C. 116.
The Court has power from time to time to adjourn the hear-
ing from one sittings to another, or others, of the Court, so that
there may be more than one adjournment. But these adjourn-
ments must be by order of the Court and such order must be en-
dorsed upon the conviction or order. These requirements are im-
perative and should be looked to. No other order will be sufficient;
it must be "by order endorsed on the conviction or order," if
made otherwise it will be irregular. See also R. v. Gregg, 13 D.
L. R. 770.
If the conviction, or order, is -qjuashed on appeal a memoran-
dum that the same has been quashed must forthwith be endorsed
on the conviction, or order, by the proper officer. This is required
for the purpose of evidence in all Courts and for all purposes that
the conviction, or order, has been quashed.
No copy of a conviction, or order, that has been quashed, or a
certificate of the same, will be of any use as such evidence unless
such copy or certificate has added thereto a copy of such memor-
andum.
If an appeal is dismissed for want of compliance with the pre-
scribed forms, as service of notice, or of not entering into the
recognizance within the time required, or making the deposit in
manner required, the right of appeal is gone and cannot be re-
newed at any fiilture sittings of the Court. See R. v. JJ. West
Riding of Yorkshire, 3 T. E. 776; R. v. JJ. Middlesex, 9 Dowl.
P. C. 163.
practice at hearing of appeal. 341
Judgment on Appeal Final.
752. When an appeal against any summary conviction or order has
been lodged in due form, and in compliance with the requirements of this
Part, the Court appealed to shall try, and shall be the absolute judge, as
well of the facts as of the law, in respect to such conviction or order.
2. Any of the parties to the ^PPeal may call witnesses and adduce evi-
dence whether such witnesses were called or evidence adduced at the hearing
before the justice or not, either as to the credibility of any witness, or as
to any other fact material to the inquiry.
3. Any evidence taken before the justice at the hearing below, certified
by the justice, may be read in such appeal, and shall have the like force
and effect as if the witness was there examined, if the Court appealed to
is satisfied, by affidavit or otherwise, that the personal presence of the
witness cannot be obtained by any reasonable efforts.
It is a condition precedent to the Court trying, or hearing, the
appeal, that the same has heen lodged in due form and in com-
pliance with the requirements of Part XV. of the Code, See B. v.
Ah Yin, 6 C. C. C. 66.
At the hearing, the first thing to he done by the appellant after
opening his case is to prove his notice of appeal, unless the same
is admitted. This proof is requisite to establish that the appeal
has been lodged in due form and in compliance with the Act.
The service of the notice may be proved by affidavit. B. v,
Curran, 22 C. C. C. 388.
After the notice has been properly proved, or has been ad-
mitted, the general practice is for the clerk of the Court to read
the conviction returned by the convicting justice. The Court can
only take notice of the record of conviction returned by the
justice. R. V. Allen, 15 East 333, 346; Boston v. Carew, 5 D. &
R. 558.
If an appeal is called and adjourned to the next session at
the request of the respondent's counsel, he may notwithstanding
require proof of due notice of appeal when the case comes on to
be heard. B. v. JJ. Middlesex, 2 Dowl. & Dowl. 719: but see
B. V. JJ. Hertfordshire, 4 B. & A. 561, where it was held that
tbe respondent had waived proof of the notice.
If any objection arise on the face of the conviction, the appel-
lant usually begins and, if he does sp, he is bound to state all his
objections thereto at once in order that they may be met on the
other side, so that all discussion relating to such objection may be
had and decision therein given before the hearing on the merits
commences.
If no objections are taken to the conviction, or such objections
are overruled, the respondent will then open his case upon the
342 PHAOTICE AT HEABING OP APPEAL.
merits. Both parties are entitled to call witnesses and adduce
evidence whether such witnesses were called, or evidence adduced
at the hearing before the justice, or not, either as to the credibility
of any witness, or as to any other facts material to the inquiry.
R. V. Washington, (1881) 46 U. C. R. 221.
Any evidence taken before the justice at the hearing below
may be read on the appeal. But such evidence must be certified
by the justice. And it shall have the like force and effect as
if the witness was examined at the hearing on appeal, if the Court
appealed to is satisfied by affidavit, or otherwise, that the personal
presence of the witness cannot be obtained by any reasonable
efforts. This implies that it is necessary that proof to the satis-
faction of the Court shall be given as to the efforts that have
been made to secure the attendance of the absent witness before
his depositions can be read. This is the natural deduction from
the language used, and yet the sub-section is so unhappily worded
that it might be open to the construction that the only consequence
of the lack of such affidavit, or other proof, " that the personal
presence of the witness cannot be obtained," would be that the
evidence would not have the " like force and effect as if the wit-
ness was there examined," but still might be read on the appeal.
This sub-section lacks the certain t}- and precision of the lan-
guage used in sec. 999 relating to the reading of depositions taken
at a ]>reliminary inquiry. However, be ready with your affidavits
to prove the efforts that have been made to secure the personal
presence of the witness, as this will likely be required of you
before you can tender and use the evidence taken before the
justice.
Witnesses living outside the province may be subpoenaed and
compelled to attend a hearing on appeal, and a Judge may even
make an order for a subpoena under sec. 676 of the Code, the pro-
visions of which section are extended to Part XV. by sec. 711,
as we have already seen. See R. v. OHlespie, 16 P. R. 155.
Objections foe Matters of Form.
753. No judgment shall be given in favour of the appellant if the ap-
peal is based on an objection to any information, complaint or summons,
or to any warrant to apprehend a defendant issued upon any such inform-
ation, complaint or summons, for any alleged defect therein in substance
or in form, or for any variance between such information, complaint, sum-
mons or warrant and the evidence adduced in support thereof at the hear-
ing of such information or complaint, unless it is proved before the Court
hearing the appeal that such objection was made before the justice before
whom the case was tried, and by whom such conviction, judgment or de-
cision was given, nor unless it is proved that notwithstanding it was shewn
JUDGMENT ON THE MERITS. 343
to such justice that by such variance the person summoned and appearing
or apprehended had been deceived or misled, such justice refused to ad-
journ the hearing of the case to some further day as in this Part provided.
As to how far this provision extends, see B. v, Johnson, 17 C.
0. C, at p. 175.
Judgment on Merits.
754. In every case of appeal from any summary conviction or order
had or made before any justice, the Court to which such appeal is made
shall, notwithstanding any defect in such conviction or order and
notwithstanding that the punishment imposed or the order made
may be in excess of that which might lawfully have been imposed or made,
hear and determine the charge or complaint on which such conviction or
order has been had or made, upon the merits, and may confirm, reverse or
modify the decision of such justice, or may make such other conviction or
order in the matter as the Court thinks just, and may by such order exercise
any power which the justice whose decision is appealed from might have
exercised, and may make such order as to costs to be paid by either party
as it thinks fit.
2. Such conviction or order shall have the same effect and may be
enforced in the same manner as if it had been made by such justice.
3. Any conviction or order made by the Court on appeal may also be
enforced by process of the Court itself.
In Collette v, R., 16 C, C. C. 281, the following points were
decided by Cross, J., in the Court of K.B., Quebec : —
1. Where an appeal from a summary conviction is dismissed without
any variance of the order made by the justice, the enforcement of the con-
viction so affirmed should proceed under warrant of the convicting justice
or of some other justice for the same territorial division, and not under
warrant issued from the Appellate Court, except for the costs of appeal.
2. If, instead of an affirmance, a different judgment has been pro-
nounced on the appeal, the judgment so substituted for that appealed from
may be enforced either by the process of the Court appealed to (Code sec
751) or by process issued by the convicting justice.
3. When the costs of an unsuccessful appeal are awarded against the
defendant, the payment of such costs may be enforced either by process of
the Appellate Court or by a justice's warrant upon certificate of default
under Code sec. 759.
4. Code Forms 53 and 54 of warrants by justices in default of pay-
ment of the costs of appeal from a summary conviction may be varied
under Code sec. 1162 so as to apply to warrants issued for the same pur-
pose by the Appellate Court.
Where the conviction differs from the minute of conviction, the
Court may alter the conviction, so as to make it conform to the
minute, but if they are alike and the conviction happens to be
wrong, the Court has no power to amend, since it cannot interfere
with the adjudication. See E. v. Elliott, 12 0. E. 524; R. v.
Walsh, 2 0. E. 206; McLennan v. McKinnon, 1 0. E. 219. But
see, contra, R. v. Menary, 19 0. E. 691.
This sec. 754 applies also to an appeal by the prosecutor from
the order of the justice dismissing the complaint. And, where an
order is made by the County Court Judge allowing the appeal
344 ENFORCING CONVICTION AFFIRMED ON APPEAL.
and convicting the accused, the prosecutor's co^ts of appeal can be
included in the costs awarded by the Judge's conviction and pay-
ment thereof may be enforced by a distress warrant and imprison-
ment in default. R. v. Eawholt, (1900) 4 C. C. C. 229.
On an appeal by way of stated case, it is discretionary with
the Court to hear an objection not taken before the justice. A
conviction for two separate offences may be quashed, although the
accused did not appear before the justice, if it cannot be ascer-
tained from the proceedings for which of the separate offences the
justice intended to convict. Simpson v. LocJc. (1903) 7 C. C.
C. 294.
On an appeal from a summary conviction had upon a plea of
guilty, the case should not be re-opened. " To open up the matter
at this stage would be tantamount to allowing the defendant to
withdraw his plea of ' guilty ' after he was convicted on that plea."
Maetin, J., in R. v. Bovman, (1898) 2 €. C. C. 89.
Where the Legislative Assembly has provided that the provi-
sions of Part LVIII. (now Part XV.) of the Criminal Code shall
apply to such appeals, and has also enacted that no appeal shall
lie unless an aflBdavit of merits be filed, the latter is a condition
precedent of the appeal in addition to those contained in sec. 880
(now sec. 751) of the Code, notwithstanding the provision of sec.
881 (now sec. 752) that where the requirements of Part LVTTT.
(now Part XV.) have been complied with, the Court shall tr} the
appeal. R. v. McLeod, (1901) 6 C. C. C. 23.
Where the costs and charges of conveying to gaol are imposed
in case of non-payment of the fine under the " Ontario Summary
Convictions Act," the amount thereof must be stated in the con-
viction, but a conviction improper in that respect may be amended
under 2 Edw. VII. (Ont.), ch. 12, sec. 15, upon an appeal, by
striking out the award of such costs. Collins v. Homing, (1903)
6 C. C. C. 514.
Costs ■where Appeal not Prosecuted.
755. The Court to which an appeal is made, upon proof of notice of
the appeal to such Court having been given to the person entitled to receive
the same, whether such notice has been properly given or not, and although
such appeal has not been afterwards prosecuted or entered, may, if such
appeal has not been abandoned according to law, at the same sittings for
which such notice was given, order to the party or parties receiving the
same such costs and charges as are thought reasonable and just by the
Court to be paid by the party or parties giving such notice.
2. Such costs shall be recoverable in the manner provided by this Act
for the recovery of costs upon an appeal against an order or conviction.
COSTS WHEN APPEAL NOT PROSECUTED. 345
Proof of notice of appeal is made a condition precedent to
the Court exercising the jurisdiction here given, and it is imma-
terial whether such notice has been properly given or not. The
inclusion of these latter words in this section renders the decisions
in Be Madden, 31 U. C. B. 333, and B. v. Becker, 20 0. E. 676,
no longer applicable.
Where the notice of appeal is given for a certain Court, there
is no jurisdiction to award costs against the appellant in respect
of the proceedings in appeal at any other sittings than the one
for which notice was given. McShadden v. Lachance, (1901) 5 C.
C. C. 43.
The same result follows when the appeal was quashed because
notice had been served upon only one of the two justices who
had tried the case. B. v. Edelston, 17 C. C. C. 155.
This decision was, however, disapproved in Pahhala v. Han-
nuksela, 20 C. C. C. 247, and see Ex parte Sprague, 8 C. C. C.
109.
The order for costs should direct payment thereof to be made
to the " clerk of the peace, or other proper officer of the Court."
See sec. 758, post, and Oay v. Mathews, 33 L. J. M. C. 14.
It is the Court to which " an appeal is made," that is
authorized to make the order as to costs. The appeal to be pro-
perly made must strictly comply with the requirements of sec.
750, and it is submitted that, notwithstanding proof of notice of
appeal being given, it will be the duty of the Court to inquire as
to whether, or not, the requirements of paragraph (c) of sec. 750
have also been complied with before the order as to costs can be
made.
If the appeal has been abandoned according to law, that is, in
accordance with the provision of sec. 760, post, then no order can
be made.
The costs awarded under this section shall be " such costs and
charges as are thought reasonable and just by the Court."
These costs, it would appear, must be fixed, or taxed, by the
Court during the sitting at which the order is made, and the
amount thereof must be set out in the minute of judgment, or
order, made, unless taxed out of sessions by consent and the
amount afterwards filled in the order. See Bothwell v. Bumside,
(1900) 4 C. C. C. 450, 31 0. R. 695, and see B. v. Mcintosh, 28
0. R. 603. See also B. v. HarnUnk, 17 C. C. C. 162.
346 PROCEEDINGS WHEN APPEAL FAILS.
Where the sessions are adjourned to a future day, the costs
may be finally settled at the adjourned sessions. R. v. Hampshire
JJ., 33 L. J. Q. B. 176.
If no adjournment, and nothing said about costs, they cannot
be given or taxed at the next subsequent sessions. B. v. J J. of
Staffordshire, 7 E. & B. 935.
If the parties consent to have the costs taxed out of Court, this
can be done and judgment entered nunc pro tunc. Freeman v.
Reid, 9 C. B. N. S. 301. Or there may be a waiver. Ex parte
Watkins, 26 J. P. 71.
Consent to tax costs out of Court may be inferred from the
universal custom to do so. Midland R'y. Go. v. Edmonton, 17
Cox 731.
Proceedings where Appeal Fails.
756. If an appeal against a conviction or order is decided in favour
of the respondents, the justice who made the conviction or order, or any
other justice for the same territorial division, may issue the warrant of
distress or commitment for execution of the same, as if no appeal had been
brought.
i
It was held by Mr. Justice Wetmore in Simington v. Col-
loume, (1900) 4 C. C. C. 36(7, in a well considered judgment in
which the majority of the Court concurred, that, reading this
section along with sec. 750, (then sec. 880), that an appeal under
sec. 880 (now 750) "has the effect of suspending the operation
of the conviction, or order, appealed against."
In other words that, upon an appeal from a summary conviction
being perfected as required by sec. 750, the same operates as a
stay of proceedings, and the person convicted does not suffer the
loss of any rights until his appeal has been dismissed and the con-
viction thereby affirmed.
Serious consequences are apt to arise under the provisions of
this section, 756, unless the Judge in Appeal, or the Crown auth-
orities, are alert after " an appeal against a conviction or order
is decided in favour of the respondents." The warrant which is
authorized by this section can only issue in the event of no previous
warrant having been issued for the enforcement of the conviction.
The practice always followed upon the conviction of a person,
say for an offence against the provisions of sec. 238, vagrancy, is
for a warrant to issue forthwith committing the prisoner to gaol,
and he is placed in custody accordingly. And it is not until after
he 35 in custody and held under the warrant of commitment that
ENFOEOING CONVICTION AFFIRMED ON APPEAL. 347
he gives the necessary notice and obtains bail and his release under
the provisions of sec. 750.
In E. V. Arscott, 9 0. E. 541, Eose^ J., expressed the opinion
that, upon an appeal being heard, and the conviction being af-
flrmed, the convicting magistrate is functus officio and cannot issue
his warrant as provided by sec. 756 since he has already performed
that duty. But in Arscottt v. Lilley, 11 0. E. 153, affirmed on
appeal, 14 A. E. 283, it was expressly held that, in such a case,
the convicting justice might issue a final warrant of commitment
to enforce the conviction, although he had already issued a warrant
under which the accused had been imprisoned until she had entered
an appeal.
By sub-sec. 3 of sec. 754 it is provided as follows: "Any con-
viction or order made by the Court on appeal may also be enforced
by process of the Court itself."
Section 751 also provides that " in case of the dismissal of an
appeal by the defendant and the affirmance of the conviction, or
order, the Court shall order and adjudge the appellant to be
punished according to the conviction," &c.
We therefore find that the appellate Court is vested with full
authority for the enforcement of the conviction. If, however, the
appellate Court does not issue any warrant of commitment, the
accused, in such a case, may be taken into custody again under
the original warrant of commitment Avhich is not vacated by the
lodging of the appeal but only suspended. B. v. Dwlin, 19 C. C.
C. 392. See, also, Collette v. King, 16 C. C. C. 281, and B. v.
Acherson, 20 C. C. C. 245.
Transmission of Conviction by Justice.
757. Every justice before whom any person is summarily tried, shall
transmit the conviction or order to the Court to which the appeal is by this
Part given, in and for the district, county or place wherein the offence is
alleged to have been committed, before the time when an appeal from such
conviction or order may be heard, there to be kept by the proper oflSoer
among the records of the Court.
2. The conviction or order shall be presumed not to have been appealed
against, until the contrary is shewn.
3. Upon any indictment or information against any person for a sub-
sequent offence, a copy of such conviction, certified by the proper officer
of thie Court, or proved to be a true copy, shall bf sufficient evidence to
prove a conviction for the former offence.
4. In any case when a conviction or order is required by this Part
after appeal to be enforced by any justice, the clerk of the Court to which
the appeal was had, or other proper officer, shall remit such conviction,
or order, and all papers therewith sent to the Court of Appeal, excepting
any notice of intention to appeal and recognizance, to such justice to be
by him proceeded upon as in such case directed by this Part.
348 TRANSMISSIOlf OF CONVICTION BY JUSTICE.
Apart from the provisions of sec. 888 (now 757), it is the duty
of the justice to return the information and depositions with the
conviction. R. v. Rondeau, (1903) 9 C. C. C. 523.
" The provisions of sec. 757 are general and apply to every
conviction or order made by a justice whether there is an appeal
or not. It is the duty of the magistrate to comply with sec. 757,
and he ought to have the documents filed before the Court open?.
I am not prepared to say what the consequences may be to him if
he does not, but, as stated in my opinion, the provision is only
directory ; if it is in Court when the appeal is called on for hearing
1 think it is sufficient for the purposes of the appeal. I can find
no case that holds that these papers should be filed before the
Court opens." Wetmore, C.J., at p. 197 in R. v. Williamson,
(1908) 13 C. C. C. 195, and see In re Ryer and Plows, 46 U. C.
R. 206, and Harwood v. Williamson, (1908) 14 C. C. C. 76.
If the conviction or order has not been returned to the sessions,
a subpcena duces tecum should be served upon the clerk to the
justices by whom it is made. The same course must be adopted
with regard to other documents which the parties require to give
in evidence at the hearing. Foley, 8th ed., p. 397, and see Barker
V. Davis, 34 L. J. M. C. 140.
Where a witness served with a subpoena duces tecum does not
attend, or attends and refuses to produce the document (not on
the ground of privilege) , secondary evidence cannot be given of its
contents, the only remedy being to punish the witness for a con-
tempt. R. V. Llanfaethly, 2 E. & B. 940; Phelps v. Prew, 3 E. &
B. 430.
As to return of convictions, see R. v. Whalen, 45 U. C. R. 396 ;
R. V. Monaghan, (1897) 2 C. C. C. 488; R. v. Ashcroft, (1899)
2 C. C. C. 385. In this last case, it was laid down that, if a
conviction has been filed by the magistrate under section 801 (now
793) of the Code in a court of Superior criminal jurisdiction, a
motion may be made to quash the same without first suing out a
writ of certiorari.
But see the judgment of Harvey, J., in R. v. GelirTce, (1906)
11 C. C. C. 109, where he goes very fully into the Ontario cases
upon the subject and adopts the reasoning of Wetmore, J., in R.
V. Monaghan, and holds that a writ of certwrari, and a return
thereto by the convicting justice, are requisite for the purpose of
bringing the conviction before the Court on an application to
quash the same, notwithstanding the fact that the original convic-
RECOVEKY OF COSTS OF APPEAL. 349
tion is on file in the Court at the time, sent there under the provi-
sions of sec. 888 (now sec. 757) of the Code.
And see R. v. Macdonald (No. 2), (1902) 5 C. C. C. 279,
where it was held by the Supreme Court of Nova Scotia, that a
motion to quash a summary conviction cannot be entertained by a
Superior Court without a writ of certiorari for that purpose and a
return to such writ.
Costs of Appeal and Eecovery Thereof.
758. If upon any appeal the Court trying the appeal orders either
party to pay costs, the order shall direct the costs to be paid to the clerk
of the peace or other proper officer of the Court, to be paid over by him to
the person entitled to the same, and shall state within what time the costs
shall be paid.
759. If such costs are not paid within the time so limited, and the
person ordered to pay the same has not been bound by any recognizance
conditioned to pay such costs, the clerk of the peace or his deputy, on
application of the person entitled to the costs, or of any person on his
behalf, and on payment of any fee to which he is entitled, shall grant to
the person so applying a certificate that the costs have not been paid.
2. Upon production of the certificate to any justice in and for the
same territorial division, such justice may enforce the payment of the costs
by warrant of distress and, in default of distress, may by warrant commit
the person against whom the warrant of distress has issued, for any term
not exceeding one month, unless the amount of the costs and all costs and
charges of the distress and also the costs of the commitment and of the
conveying of the party to prison, if the justice thinks fit so to order, are
sooner paid.
3. The said certificate shall be in Form 52 and the warrants of distress
and commitment in Forms 53 and 54 respectively.
Proceeding by way of certiorari against a summary conviction
is not an appeal to which sec. 758 refers, and an ex parte order
for payment of costs upon the dismissal of a motion for certiorari
directing that the costs should be paid to the clerk of the peace, &c.,
was discharged. R. v. Graham, (1898) 1 C. C. C. 405.
The issuing of a warrant of commitment under sec. 759 is dis-
cretionary and not compulsory. See Delaney v. McNah, 21 C. P.
563.
Abanidonment of Appeal.
760. An appellant may abandon his appeal by giving to the opposite
party notice in writing of his intention six clear days before the sitting
of the Court appealed to, and thereupon the costs of the appeal shall be
added to the sum, if any, adjudged against the appellant by the conviction
or order, and the justice shall proceed on the conviction or order as if there
had been no appeal.
Six clear days are to be reckoned exclusively of both the first
and last days. Re Sams & Toronto, 9 U. C. E. 181.
350 STATING A CASE FOR THE OPINION OF THE COURT.
If the proper notice of abandonment is not given, sec. 755 will
apply.
The costs of appeal are to be added to the sum, if any, adjudged
against the appellant by the conviction, or order, and the justice
shall proceed on the conviction, or order, as if there had been no
appeal. This means that the justice may, if necessary, proceed
by warrant of distress not only to collect the original sum requii^ed
to be paid by the defendant, but there shall be added therefto the
costs of appeal.
These costs of appeal may include solicitor's fees. See R. v.
Mcintosh, 28 0. R. 603.
Stating a Case.
761, Any person aggrieved, the prosecutor or complainant as well as
the defendant, who desires to question a conviction, order, determination
or other proceeding of a justice under this Part, on the ground that it is
erroneous in point of law or is in excess of jurisdiction, may apply to such
justice to state and sign a case setting forth the facts of the case and the
grounds on which the proceeding is questioned, and, if the justice declines
to state the case, may apply to the Court for an order requiring the case
to be stated.
" 2. The application shall be made and the case stated within such
time and in such manner as is from time to time directed by rules or
orders made under section five hundred and seventy-six of this Act.
" 3. If there be no rule or order otherwise providing, —
" (o) the application shall be made in writing to the justice and a .
copy thereof left with him. and may be made at any time within
seven clear days from the date of the proceeding to be questioned ;
"(b) the case shall be stated within three calendar months after the
date of the application, and after the recognizance hereinafter re-
ferred to has been entered into ; and
" (c) the applicant shall within three days after receiving the case
transmit it to the Court, first giving notice in writing of such appeal,
with a copy of the case as signed and stated, to the other party to
the proceeding which is questioned."
By sec. 576 of the Code power is given to every Superior Court
of criminal jurisdiction to make rules for regulating the practice
in criminal matters, and among other things the proceedings on
application to a justice to state and sign a case for the opinion of
the Courts as to a conviction, order, determination or other pro-
ceeding before him.
And by the amendmenit of i8-9 Edw. VII. ch. 9, sec. 2 — ^if there
time and in such manner as is from time to time directed by rules
or orders made under sec. 576 of the Code.
And by the amendment of 8-9 Edw. YII. ch. 9, sec. 2 — if there
be no rule, or order, otherwise providing — then the application
must be made in writing to the justice and copy left with him, and
KULES AS TO STATED CASES. 351
may be made at any time within seven clear days from the date of
the proceedings to be questioned. If more than one justice pre-
sided when the decision was given, then the application should be
made to both of the justices. See Westmore v. Paine, [1891] 1 Q.
E. 482.
The case must be stated within three calendar months after
the date of application and after the recognizance has been entered
into.
After receiving the case the applicant must, within three days
thereafter, transmit it to the Court. The applicant is also re-
quired, before he transmit the case to the Court, to give notice in
writing of the appeal and serve a copy of the case as signed and
stated, to the other party to the proceeding in question. The re-
quirements of the statute as to the mode and manner of applica-
tion for a case must be strictly complied with and they cannot be
waived by the parties, or justices. LocJchart v. St. Albans, 21 Q.
B. D. 188.
It is to be noted that any person aggrieved whether prosecutor,
or complainant, or defendaUt, may question the conviction, order,
or determination, or other proceeding of a justice under Part XV.
The appeal by way of stated case under this and the subsequent
sections is therefore confined to proceedings by way of summary
convictions taken and concluded under Part XV., and does not
apply to proceedings under Part XVI.
The only grounds of appeal allowable by way of stated case
under this section are: — (1) That the decision appealed from "is
erroneous in point of law," or (2) is "in excess of jurisdiction."
A case can, therefore, not be stated upon a question of fact.
The Superior Court is concerned alone as to whether or not the
decision of the justice is erroneous in point of law, and to see
whether the facts are suflBcient to warrant the legal conclusion
which the justices have drawn from the facts. See Cornwall v.
Sanders, 3 B. & S. 206 ; Taylor v. Vram, 31 L. J. M. C. 252, and
R. v. Raffles, 45 L. J. M. C. 61.
As to who is a "person aggrieved," see notes to sec. 749.
As we will see by sec. 762, at the time of making his applica-
tion and before a case is stated and delivered to him by the justice,
the applicant must in every instance enter into a recognizance
before such justice or some other justice having jurisdiction, con-
ditioned to prosecute his appeal without delay and to submit to the
judgment of the Court and pay the costs awarded against him, if
352 DECISIONS AS TO STATED CASES.
any. The applicant must also, at the same time and before the
case is delivered to him, pay the justice such fees as he is entitled
to.
If the appellant is in custody he shall be liberated upon the
recognizance being further conditioned for his appearance before
the justice within ten days after the judgment of the Court has
been given, to abide such judgment, unless the judgment appealed
against is reversed.
Where rules of Court have been made under the authority of
sec. 576 of the Code regulating the proceedings for application to a
justice to state and sign a case, these rules must be strictly com-
plied with in every respect, since a proper compliance with the same
is a condition precedent to the appeal being heard. See R. v.
Earley (No. 2), (1906) 10 C. C. C. 336; South Staffordshire v.
Stone, (1887) 19 Q. B. D. 168; Lockhart v. St. Alhans, (1888)
21 Q. B. D. 188; /2. v. Earley (No. 1), (1906) 10 C. C. C. 280 and
Woodhouse v. Woods, 29 L. J. M. C. 149.
The time limited for appeals from summary convictions has no
application to a stated case. R. v. Fergiison, (1906) 11 C. C. C.
277.
An objection of law which arises from the facts stated in the
case may be taken and decided by the Court, although not raised
before the justice. Knight v. Halliwell, L. E. 9 Q. B. 412.
On an appeal by way of stated case from a summary con-
viction it is discretionary with the Court to hear and determine an
objection which was not taken before the justice. Simpson v.
Lock, (1903) 7 C. C. C. 294.
But in R. V. Nugent, (1904) 9 C. C. C. 1, it was held that
the questions of law to be determined upon a stated case under
sec. 761 are those only which have first been raised before the
justice, and which are specified and set forth in the stated case.
A police magistrate who has made a conviction under the Alien
Labour Act is not persona designata, and he may state a case for
the opinion of the Court under sec. 761 of the Code. R. v. Breck-
inridge, (1905) 10 C. C. C. 180.
Upon the hearing of a case stated by a justice iinder the Nova
Scotia Summary Convictions Act, the conviction having imposed
the proper money penalty, but having affixed a term of imprison-
ment not authorized, the Court amended the conviction by insert-
ing the term of imprisonment applicable under the statutory pro-
vision. See E. S. N". S. ch. 100, sees. 146, 147, allowing such
amendment. R. v. Power (1908) 14 C. C. C. 264.
TIME FOR DELIVERY OF STATED CASE. 353
" The ruling by a magistrate as to the admissibility of evidence
is not a 'proceeding' within the meaning of sec. 761 of the Code,
nor is it a ' determination/ and it is certainly not a ' conviction '
or 'order.' We should not, therefore, have been asked to decide
as to the admissibility of evidence," etc. Eiddell, J., at p. 118,
in R. V. Dommion Athletic Club, (1909) 15 C. C. C. 105.
'•' The police magistrate has made the evidence a part of the case ;
that he should not have done. The Act is precise that he should
' sign a case setting forth the facts of the case and the grounds on
which the proceeding is questioned ' ; then our duty is to determine
the ' questions of law arising thereon.' We should have nothing
before us but the facts and the grounds aforesaid." Eiddell, J.,
at p. 125, in same case.
W^here the justices did not deliver the case to the appellant
within the time iixed by the Eules of Court, but it was established
that the appellant had done all that was practicable for him to do,
it was held that he should not lose his right to appeal. It was
also held that the recognizance of the appellant alone was a com-
pliance with the provisions of the Code. R. v. Turnhull, (1909)
15 C. C. C. 1.
Where a case is stated under Part XV. of the Code, or under
the Ontario Summary Convictions Act, it is to be heard by the
High Court and not by the Court of Appeal. R. v. Henry, (1910)
16 C. C. C. 73.
Paragraph (b) of sub-sec. 3 of sec. 761 reqiuires that "the
case shall be stated within three calendar months after the date of
the application and after the recognizance has been entered into."
These words have been held to be directory only as to the duties of
the justices after notice, and an application to strike out a case not
stated within the time fixed by this rule was refused. Hughes v.
Wavertree Local Board, (1894) 10 T. L. E. 357, and 58 J. P. 654,
When an appellant has done all that he can to comply with the
statute, but through the act of the other party he has been pre-
vented from fulfilling its conditions, there may be a relaxation of
the rule in his favour. Ibid.
And, where the respondetnt could not be found, it was held suflB-
cient to serve on the solicitor, who appeared before the magistrate,
the notice of appeal and copy of the case within three days, it
appearing that they had afterwards come to her hands, Syred v,
Carruthers, E. B. & E. 469, 27 L. J. M. C. 273.
C.C.P.— 23
354 TRANSMISSION OF CASE TO COURT.
If after the expiration of tliree days the case remains in the
appellants' hands, it becomes wholly inoperative and, if he take it
back to the justices, they have no power of amending it, and if
they do so, in fact, the appellant does not gain a further period
of three days from the amendment for transmitting the case to the
Court. Query, whether the justices can amend the case within
three days after they have delivered it to the appellant? Olouces-
ier Board of Health v. Chandler, 33 L. J. M. C. 66, 7 L. T. 722.
Where an appellant received the case from the justices on Good
Friday and transmitted it to the proper Court on the following
Wednesday, it was held that, as the offices of the Court were closed
from Friday until Wednesday, the appellant had transmitted the
case as soon as it was possible for him to do so, and, therefore, had
sufficiently complied with the requirements of the statute. Mayor
V. Harding, L. R. 2 Q. B. 410, 16 L. T. 429.
The Crown office rules provide that every special case shall be
divided into paragraphs, each of which as nearly as may be is to
be confined to a distinct portion of the subject, and is to be num-
bered consecutively. As in some of the provinces of Canada there
are no rules, it will be well to be guided by the Crown office rules
as to the preparation of the case.
On the argument, the appellant always begins, and, as a rule,
only one counsel will be heard on each side.
If the respondent does not appear, the appellant must shew
that the decision of the justice is wrong before he can obtain the
judgment of the Court. Syred v. Oarruthers, supra.
The Appellate Court will not decide on the weight and suffi-
ciency of the evidence, but will accept thq finding of the justice
upon the facts within his jurisdiction as conclusive, whatever may
be the opinion of the Court as to the value of the evidence. Corn-
u-ell X. Sanders, 3 B. & S. 206, 32 L. J. M. C. 6.
The Court has only to see whether the determination is errone-
ous '^ in point of law." See Taylor v. Oram, supra.
Justices have no right to be heard in support of their decision
upon the argument of a case stated by them for the opinion of the
Court. Smith x. Butler, 16 Q. B. D. 349.
Recognizance by Appellant.
762. The appellant at the time of making sueh application, and before
a case is stated and delivered to him by the justice, shall, in every instance,
enter into a recognizance before snch justice or some other justice exercis-
ing the same jurisdiction, with or without surety or sureties, and in such
RECOGNIZANCE WHEN CASE STATED. 355
sum as to the justice seems meet, conditioned to prosecute his appeal with-
out delay, and to submit to the judgment of the Court and pay such costs
as are awarded by the same ; and the appellant shall, at the same time,
and before he shall be entitled to have the case delivered to him, pay to
the justice such fees as he is entitled to.
2. The appellant, if then in custody, shall be liberated upon the
recognizance being further conditioned for his appearance before the same
justice, or such other justice as is then sitting, within ten days after the
judgment of the Court has been given, to abide such judgment, unless the
judgment appealed against is reversed.
" 762a. Where, pending an application for the statement of a case,
the justice dies or quits office the applicant may, on notice to the other
party or parties, apply to the Court to state a case itself, and if a case is
thereupon stated it may be dealt with as if it had been duly stated by the
said justice.
"2. Before any such case is stated by the Court the applicant shall
enter into recognizances as provided by section 762."
It is a condition precedent to a case being stated and delivered
to the applicant, that the appellant in every instance should enter
into a recognizance with, or without, sureties, and in such sum as
to the justice seems meet. And a cash deposit cannot be accepted
in lieu of recognizance. See R. v. Geiser, (1901) 5 C. C. C. 154.
If the appellant is in custody, he shall be liberated upon the
recognizance being further conditioned for his appearance before
the same justice, or such other justice as is then sitting, within
ten days after judgment of the Court has been given, to abide
such judgment, unless the judgment appealed against is reversed.
If the judgment of the Court sustains the conviction and the
appellant is required to serve the balance of the sentence originally
imposed by the conviction appealed against, the same proceedings
may be taken to enforce the conviction as in the case of an appeal
under sec. 750. See pp. 346 and 347, supra, and sec. 767, post.
Forms of stated case, recognizance and other forms relating
to stated cases will be found in the appendix.
Where the recognizance was not entered into within the time
for making the application, but was completed before the delivery
of the case, it was held to be a sufficient compliance with the Eules.
Stanhope v. TJiorsly, L. R. 1 C. P. 420, 14 L. T. 332.
Refusal to State a Case.
763. If the justice is of opinion that the application is merely frivo-
lous, but not otherwise, he may refuse to state a case, and shall on the
request of the applicant sign and deliver to him a certificate of such
refusal : Provided that the justice shall not refuse to state a case where the
application for that purpose is made to him by or under the direction of
the Attorney-General of Canada, or of any province.
764. Where the justice refuses to state a case, it shall be lawful for
the applicant to apply to the Court, upon an affidavit of the facts, for a
356 REFUSAL OF JUSTICE TO STATE A CASE.
rule calling upon the justice, and also upon the respondent, to show cause
why such case should not be stated ; and such Court may make such rule
absolute, or discharge the application, with or without payment of costs,
as to the Court seems meet.
2. The justice, upon being served with such rule absolute, shall state
a case accordingly, upon the appellant entering into such recognizance as
hereinbefore provided.
Form of certificate of refusal will be found in the appendix.
If the justices ao(juit, in a case in which they ought to inflict
a merely nominal penalty, the High Court is not compelled to
order "them to sitate a spiecial case. R. v. Davy, et al., [Ii899] 2
Q. B., at p. 307, 80 L. T. 798.
In England, there is no appeal from the Divisional Court
where they refuse to grant an order nisi for a mandamus to com-
pel the magistrate to state a case upon a point of law arising in
a criminal cause, or matter. Lord Esher, M.K., in Ex parte
Schofield, [1891] 2 Q. B. 429; E. v. Sparling, 21 W. R. 461, 60
L. J. M. C. 157. As to ordering a justice to state a case, see R.
V. Shiel, (1900) 19 Cox 507.
When a debatable question of law as to the construction of a
Btatute is involved, the justice cannot refuse to state a case on
the ground that the question is merely frivolous. R. v. Pollard,
14 L. T. 599.
Nor can the justice refuse to state a case on the ground that
the objection had not been formally brought to his notice, where
such an objection goes to the root of the whole matter; and,
though he is bound to know the law, the Court will not in such
a case give costs of the application to compel him to sfate a case.
Ex parte Markham, 21 L. T. 748.
The Court will not express any opinion except upon the facts
appearing in the case. St. James v. St. Mary, 29 L. J. M. C.
26.
The duty of the Court is simply to answer the question of law
put to them by the magistrate. Buckmaster v. Reynolds, 13 C. B,
N. S. 62.
Where the justices state the grounds for finding the facts, the
Court may consider whether they are sufficient in law. Tyrrell
V. Flannagan, [1901] 2 Q. B. Ir. 423.
Where an objection was taken that the justices had improperly
received evidence, a rule to state a case was refused. It must
appear that the decision was wrong in law. R. v. JJ. Maccles^
field, 2 L. T. 352, 13 Q. B. 881.
HEARING OF STATED CASE BY COURT. 357
A right of appeal must be given by express enactment and
cannot be extended by an equitable construction to cases not dis-
tinctly enumerated. R. v. Stock, 8 A. & E. 405.
The case is usually drawn up by the appellants' solicitor, and
a copy served on the prosecutor, or respondent, together with a
notice of settling the same before the justice; or a memorandum
endorsed on the case and signed by the solicitor for the respondent,
that he agrees, will be sufficient. The case can then be submitted
to the justice and finally settled, and a copy and notice of appeal,
as required by paragraph (c) of sub-sec. 2 of sec. 761, served on
the other party to the proceeding, viz., the respondent.
Hearing of Stated Case.
765. The Court to which a case is transmitted shall hear and deter-
mine the question or questions of law arising thereon, and shall thereupon
affirm, reverse or modify the conviction, order or determination in respect
of which the case has been stated, or remit the matter to the justice with
the opinion of the Court thereon, and may make such other order in rela-
tion to the matter, and such orders as to costs, as to the Court seems fit ;
and all such orders shall be final and conclusive upon all parties.
2. No justice who states and delivers a case shall be liable to any costs
in respect or by reason of such appeal against his determination.
766. The Court for the opinion of which a case is stated shall have
power, if it thinks fit, to cause the case to be sent back for amendment;
and thereupon the same shall be amended accordingly, and judgment shall
be delivered after it has been amended.
2. The authority and jurisdiction of the Court for the opinion of which
a case is stated may, subject to any rules and orders of Court in relation
thereto, be exercised by a Judge of such Court sitting in chambers, and as
well in vacation as in term time.
The Court has no authority to say anything further than that
the justice was right, or wrong, in his decision, and to answer the
questions submitted. No case should be granted unless some
doubtful point of law has been raised of suflScient importance to
be submitted to the Court. See Blackburn. J,, in St. Botolph
V. White Chapel, 2 L. T., at p. 507; also St. James v. ;S^^. Mary,
supra, and BucJcmaster v. Reynolds, supra.
Where the case is not sufficiently explicit, it may be sent back
for amendment. Crowtker v, Boult, 13 Q. B. D. 680; Hodgson
v. Little, 16 C. B. N. S., at p. 202; Pedgrift v. Chevalier, 8 C. B.
N. S. 246.
On a mere suggestion that there has been misconduct, or
negligence, in drawing up a case, the Court will not send it back
for amendment. Townshend v. Read, 4 L. T, 447.
By sec. 1151 of the Code, it is provided that no action or
proceeding shall be commenced, or had, against a justice for
358 COSTS ENFORCEMENT OF CONVICTION BY JUSTICES.
enforcing a couviction, order or determination affirmed, amended
or made by the Court under sec. 765.
Costs.
If the conviction is quashed, as a rule, the costs are given
against the prosecutor or respondent. Venables v. Hardman, 1
E. & E. 79.
If the appellant drops or abandons his appeal by way of stated
case, he will be ordered to pay the costs of the respondent. Crow-
ther V. BouU, supra.
A justice who states and delivers a case cannot be made liable
for the costs of the appeal ; it is otherwise if the justice improperly
refuses to state a case, he may then be ordered to pay the costs of
an application to compel him to state it. R. v. Watson, 48 J. P.
149 ; see also sub-sec. 2 of sec. 765.
Enforcement of Conviction by Justices,
767. After the decision of the Court in relation to any case stated for
their opinion, the justice in relation to whose determination the case has
been stated, or any other justice exercising the same jurisdiction, shall have
the same authority to enforce any conviction, order or determination which
has been affirmed, amended or made by such Court as the justice who
originally decided the case would have had to enforce his determination
if a case had not been stated.
2. If the Court deems it necessary or expedient any order of the Court
may be enforced by its own process.
768. No writ of certiorari or other writ shjill be required for the
removal of any conviction, order or other determination in relation to which
a case is stated as aforesaid for obtaining the judgment or determination
of a superior Court on such case.
769. Every person for whom a case is stated as aforesaid in respect
of any determination of a justice from which he is entitled to an appeal
under section seven hundred and forty-nine, shall be taken to have aban-
doned his said right of appeal finally and conclusively and to all intents
and purposes.
2. Where, by any special Act. it is provided that there shall be no
appeal from any conviction or order, no proceedings shall be taken to have
a case stated or signed as aforesaid in any case to which such provision
as to appeal in such special Act applies.
Justices' and Constables' Fees under Part XV. of the Code.
770. The fees mentioned in the following tariff and no others shall be
and constitute the fees to be taken on proceedings before justices under
this Part:—
Fees io ie taken hy Justices of the Peace or their Clerks.
1. Information or complaint and warrant or summons $0 50
2. Warrant where summons issued in first instance 0 10
3. Each necessary copy of summons or warrant 0 10
TARIFF OF FEES CHARGEABLE. 359
4 Each summons or warrant to or for a witness or witnesses.
(Only one summons on each side to be charged for in each
case, which may contain any number of names. If the justice
of the case requires it, additional summonses shall be issued
without charge) $0 10
5. Information for warrant for witness and warrant 0 50
6. Each necessary copy of summons or warrant for witness 0 10
7. For every recognizance 0 25
8. For hearing and determining case 0 50
9. If case lasts over two hours 1 00
10. Where one justice alone cannot lawfully hear and determine the
case the same fee for hearing and determining to be allowed
to the associate justice,
11. For each warrant of distress or commitment 0 25
12. For making up record of conviction or order where the same is
ordered to be returned to sessions or on certiorari 1 00
But in all cases which admit of a summary proceeding before
a single justice and wherein no higher penalty than $20
can be imposed, there shall be charged for the record of
conviction not more than 0 50
13. For copy of any other paper connected with any case, and the
minutes of the same if demanded, per folio of 100 words .... 0 05
14. For every bill of costs when demanded to be made out in detail 0 10
(Items 13 and 14 to be chargeable only when there has been
an adjudication.)
Constables' Fees.
1. Arrest of each individual upon a warrant 1 50
2. Serving summons 0 25
3. Mileage to serve summons or warrant, per mile (one way)
necessarily travelled 0 10
4. Same mileage when service cannot be effected, but only upon
proof of due diligence.
5. Mileage taking prisoner to gaol, exclusive of disbursements neces-
sarily expended in his conveyance 0 10
6. Attending justices on trial, for each day necessarily employed in
one or more cases, when engaged less than four hours 1 00
7. Attending justices on trial, for each day necessarily employed
in one or more cases, when engaged more than four hours .... 1 50
8. Mileage travelled to attend trial (when public conveyance can
be taken, only reasonable disbursements to be allowed) one
way per mile 0 10
9. Serving warrant of distress and returning same 1 00
10. Advertising under warrant of distress 1 00
11. Travelling to make distress or to search for goods to make
distress, when no goods are found (one way) per mile .... 0 10
12. Appraisements, whether by one appraiser or more — two cents
in the dollar on the value of the goods.
13. Commission on sale and delivery of goodsi — five cents in the
dollar on the net proceeds.
Witnesses' Fee».
1. Each day attending trial $0 75
2. Mileage travelled to attend trial (one way) per mile 0 10
Interpreter's Fees.
1. Each day attending trial $2 00
2. Mileage travelled to attend trial (one way) per mile 0 10
A magistrate cannot properly demand fees when the proceed-
ings are in respect of an offence which cannot be dealt with sum-
marily under this Part. E. v. Meehan, (No. 3), (1902) 5 C. C.
C. 3]'?, 3 0. L. E. 567.
360 LIQUOB LICENSE ACTS — ^DECISIONS UNDER.
CHAPTER IX.
Cases undek Liquoe License Acts and the Canada
Temperance Act.
The first edition of this work had no chapter or section deal-
ing specially with prosecutions for offences under the Liquor
License Acts of the various provinces, which are punishable under
summary conviction, and, therefore, would properly come within
the scope of the last chapter.
The reason for that omission probably was that the subject is
fully dealt with in Tremeear^s Liquor Laws of Canada, published
in 1904, to which the reader is referred, but it is supposed that it
will be useful to magistrates and the legal profession to insert
here references to some of the decisions of the Courts not in-
cluded in that work or referred to under other headings in the
first edition of this work.
Amendment.
A summary conviction purporting to be under the Ontario
Liquor License Law. for unlawfully allowing liquor to be sold
(which is not in terms an offence under the statute) may be
amended, if the evidence warrants it, so as to make it a con-
viction for selling without a license.
Such an amendment is permissible under sec. 889 of the
Criminal Code made applicable to prosecutions under Ontario laws
by provincial enactment. R. v. MeiMeham, 10 C. C. C. 382.
Although the defendant has failed to appear after summons
in a summary conviction matter, the information may be amended
to correct the date of the offence, but not to charge a different
offence.
A charge of illegally selling liquor on a date specified is pro-
perly amended to charge the illegal sale as of a date four days
earlier, and such change of date does not necessarily make it a
charge of a different offence. R. v. Tompl-ins, 12 C. C. C. 552,
An information under the Liquor License Act (Ont.) charging
the sale of liquor to a minor may be amended by adding that the
minor was " apparently or to the knowledge of the defendant under
the age of twenty-one," although the time for laying a new in-
formation for such offence had expired before the amendment
was asked.
AMENDMENT — AMOUNT OF FINE BREWER's LICENSE. 361
Such an amendment involving only the addition of words
necessary to describe the offence intended to be charged, but in-
completely charged in the information, is not the substitution of
another and different offence as to which the prescription may
apply. R. V. Ayer, 14 C. C. C. 210.
Under sec. 105 of the Liquor License Act, the Court on habeas
corpus may amend a summary conviction for an infraction thereof
by striking out an unauthorized adjudication for further deten-
tion in respect of charges of conveying the prisoner to gaol. R.
V. Graves (No. 1), 16 C. C. C. 150. See also R. v. Guertin, 15
C. C. C. 251, supra, p. 122, and R. v. Frizell, 22 C. C. C. 214.
Amount op Fine.
Under Part II. of the Canada Temperance Act, which enacts
that a fine may be imposed of " not less than $50 " for a first
offence, and of " not less than $100 " for a second offence, the
magistrate cannot impose a fine of more than $50 for a first
offence. Re Richard, 12 C. C. C. 204.
Under the New Brunswick Liquor License Act, the minimum
penalty for selling by a licensee after hours must be imposed,
although the conviction is founded upon the statutory presump-
tion of the sale, because of a light in the bar-room.
A summary conviction for a penalty less than the statutory
minimum will be set aside on appeal under the New Brunswick
Liqiuor Law. R. v. Mclntyre, 14 C. C. C. 43.
Brewer's License.
A brewer may properly be convicted under a provincial license
law for selling liquor without a provincial license, although he
holds a license under the Dominion Inland Eevenue Act to carry
on the trade or business of a brewer.
Semble, the license under the Inland Revenue Act applies only
as a permit to manufacture as regards the excise duties. R. v.
Neiderstadt, 10 C. C. C. 292.
Certiorari.
The deposit of $50, which is a condition of a certiorari under
the Quebec License Law (1900), is a deposit in security and not
in sequestration.
362 LIQUOll LICENSE CASES — CERTIORARI — CLUBS.
The application for certiorari could not take away from the
accused person his option of serving the term of imprisonment to
which he had been condemned in the place of such payment.
Although the writ of certiorari suspended the execution of the
Bcntence, the effect of quashing the writ is merely to render the
person convicted liable to the term of imprisonment; and, if he
takes that option, he has a right to the re-imbursement of the
deposit representing the fine and costs. Wing v. Sicotte, 10 C.
C. C. 171.
Where there is a right of appeal from the magistrate to a
County Court under a liquor license law, a superior Court should
refuse certiorari on grounds not going to the jurisdiction of the
magistrate, unless there are exceptional circumstances to be con-
sidered. Ex parte Damboise, 16 C. C. C. 292.
Deposit as Security.
See Wing v. Sicotte, supra.
Change of Territory under Canada Temperance Act.
See R. v. McMullen, 9 C. C. C. 531.
Clubs.
The supplying of the club's liquors by the steward to the mem-
bers of an incorporated olub at a tariff charge is not a mere dis-
tribution of club property amongst the members, but is a sale on
behalf of the corporation to the member. B. v. Simmonds, 16 C.
C. C. 498, and sec note at p. 502.
Persons who contribute to a fund for the purpose of Iniying
intoxicating liquors in bulk and renting a room wherein to drink
the same constitute an association or club within sec. 53 of the
Ontario Liquor License Act and each of them is liable under that
section as for keeping liquor for sale. R. v. Cahoon, 17 C. C. C.
659. See also R. v. Byng, 18 C. C. C. 344.
Concurrent Legislative Powder.
The Legislature of the Province of Quebec ha,s no power to
repeal any portion of the Temperance Act of 1864 enacted by
the former province of Canada; and sec. 97 of the Quebec License
Act of 1870, purporting to repeal certain sections thereof, in so
CONVICTIONS FOR SECOND OR THIRD OFFENCE. 363
far as the same relates to the Province of Quebec and to matters
within the control of the Provincial Legislature, is of no effect.
The fact that the offence was an infraction of the Temperance
Act of 1864 does not prevent its being also an offence under a
provincial law and punishable under either or both, the federal
and provincial jurisdictions to constitute the sale an offence being
concurrent. Ex parte O'Neill, 9 C. C. C. 141.
Conviction for Second or Subsequent Offence.
A conviction for a third offence under the Canada Temperance
Act is valid, if it follows the statutory form without reciting that
such third offence was committed after information laid for the
first offence, if such was in fact the case. R. v. Swan, 8 C.
C. C. 86.
The fact that information was duly laid for the prior offence
must be proved in a charge as for a second or third offence under
the Canada Temperance Act, where the inc-xeased penalty is to be
imposed. B. v. Hoare, 12 C. C. C. 1.
As there are other offences of selling liquor, ex gr., to a minor
or interdicted person, unler the Ontario Liquor License Act, an
admission by the accused of a previous conviction for selling, with-
out specifying the nature of such previous offence, will not suffice
to sustain a conviction under that Act for a second offence for
selling without a license.
A defendant charged and convicted of a second offence under
the Liquor License Act (Ont.), without proper proof or admission
of the prior conviction, is entitled to be discharged on habeas
corpus, as the Court is not authorized to amend the conviction by
reducing it to one for a first offence. R. v. Simmons, 14 C. C.
C. 5. See also R. v. Wellman, 14 C. C. C. 335 ; R. v. Curran, 22
C. C. C. 388.
As to prosecutions in Manitoba for second and subsequent
offences, see the special provisions of the amendments to the
Liquor License Act made in and now comtained in sees. 206-311
of ch. 117, R. S. M., 1913.
Proof of Previous Conviction.
Under the Ontario Liquor License Act, sec. 101 (similar to
sec. 115, Canada Temperance Act), the magistrate trying a charge
of a second or subsequent offence is prohibited from taking evi-
dence as to the prior conviction until after his adjudication of
364 PROOF OF PREVIOUS CONVICTION.
guilty in respect of the subsequent offence, and non-compliance
with the statute deprives the magistrate of jurisdiction.
The defect in the proceedings consequent upon the admission
of evidence of the prior conviction in contravention of the statute
cannot be remedied by the magistrate striking out such evidence,
nor is his jurisdiction thereby restored. R. v. Nurse, 8 C. C. C.
173.
A certificate that the defendant had been convicted for keeping
intoxicating liquor for sale contrary to the Canada Temperance
Act is sufiicient proof of a previous offence upon which to base
a second conviction for keeping for sale, though it does not appear
from the certificate, and was not otherwise proved, that such pre-
vious conviction was for a first offence. Ex parte Batson, 10 C.
C. C. 240.
On a charge of a second offence of selling liquor without a
license, the prior summary conviction must be proved by the
record or a certificate of conviction, and oral testimony of wit-
nesses at the trial of the first offence, and purporting to prove
what conviction was then made, is insuflBeient. Per Britton and
Riddell, JJ., in R. v. Graves (No. 2), 16 C. C. C. 318.
Where a certificate of a previous conviction of a person of
the same name and description as the accused is put in evidence
as proof of a previous conviction without specific evidence of
identity, and without any question of identity being raised, there
is evidence upon which the magistrate may determine whether or
not the accused was the person formerly convicted. R. v. Batson,
12 C. C. C. 62.
It is not essential that the accused should be personally brought
before the magistrate for the purpose of being asked whether he
was previously convicted as alleged and, if the accused is not
present, but has been duly summoned, the previous conviction may
be proved against him. R. v. Coote, 17 C. C. C. 211.
The production of a certificate of a summary conviction before
the same magistrate giving the name and address of the person
convicted, similar to the name and address of the defendant now
charged with a second offence, is some evidence of identity on
proving that the accused had been previously convicted, without
oral evidence to show that the same individual was the defendant
in both cases. R. v. Atkinson, 18 C. C. C. 279.
Where there is no proof, either by admission, or certificate, of
the prior offences upon a charge of a third offence of selling in-
toxicating liquor without a license under the Liquor License Act
DESTRUCTION OF LIQUORS — ^EVIDENCE. 365
(Sask,), the conviction imposing a larger penalty than is author-
ized for a first offence must be quashed. R. v. Koogo, 19 C, C.
C. 56. See R. v. McNutt, 20 C. C. C. 174; also R. v. Matheson,
20 C. C. C. 153, 496; R. v. Leach, 14 C. C. C. 375, and R. v.
Curran, supra.
Destruction of Liquors,
Where a magistrate makes an order for forfeiture and destruc-
tion of liquors without evidence that such liqiuors were illegally
kept for sale, the order should be quashed upon certiorari.
The order for destruction is not necessarily a part of the con-
viction, but may by statute be embodied in it. R. v. Ing Kon, 14
C. C. C. 197.
An order for destruction of liquors seized and adjudged to
have been illegally kept for sale contrary to the Ontario Liquor
License Act is valid as an authorization to the officer directed to
superintend the destruction, although not reduced to writing.
The formal order for destruction may be made either separ-
ately from the conviction or it may be embodied in the formal
conviction.
The formal order or conviction, as the case may be, may be
made up at any time before the return to a certiorari, and this
notwithstanding that the order had already been executed. Ing
Kon V. Archibald, 14 C. C. C. 201.
There is nothing in the Canada Temperance Act, E. S. C.
1906, ch. 152, to prevent the appointment of the officer who laid
the information, for violation of the Act, to carry out an order to
destroy liquors seized in the proceeding. R. v. LeBlanc, 21 C. C.
C. 221.
Evidence,
The statutory presumption under sec. 99 of the Liquor License
Act (N.B.) against the occupant of premises where an illegal sale
of liquor takes place is a conclusive and not a rebuttable one.
In order that the statutory presumption against an occupant
should arise, the transaction must be shewn to be one of sale,
barter or traffic, and not the mere act of a servant complying with
a request of a stranger to go out and purchase liquor for him
with money then handed to him.
The evidence of a whisky detective or " spotter," who is shewn
to be under a contract of remuneration according to the convic-
tions obtained through his efforts, should not receive credence in
366 EVIDENCE IN LIQUOR PROSECUTIONS.
a liqiuor law prosecution when the slightest doubt attaches to it.
R. V. Rogers, 11 C. C. C. 257.
See R. V. McElroy, 22 C. C. C. 123, as to the right of the
magistrate to believe the evidence given in chief as against the
answers brought out on cross-examination.
Where the depositions in support of a summary conviction for
keeping liquor for sale without a license fail to shew the time and
place of the alleged offence or that the circumstances deposed to
had reference to the time and place stated in the information, the
conviction will be quashed for lack of evidence to support the
same. R. v. Reedy, 14 C. C. C. 256.
The fact that the person selling liquors where the Canada
Temperance Act is in force did not know that the beverage he
sold was intoxicating and believed it to be non-alcoholic, will not
constitute a defence to a prosecution for illegal sale.
Where it is shewn that the liquor sold was a malt liquor, it is
not necessary to prove that it would intoxicate, as all malt liquors
are included in the statutory definition of " intoxicating liquors "
under the Canada Temperance Act. Ex parte Lindsay, 15 C.
C. C. 252.
Where the evidence for the prosecution under the Canada
Temperance Act shewed that the alleged non-alcoholic beverage
in question had intoxicated, the jurisdiction of the magistrate to
convict on crediting such testimony is not displaced by expert
evidence that the percentage of spirits on analysis of the liquor
was about one-half of one per cent. Ex parte Horsman, 15 C.
C. C. 280.
Where charges for separate offences at different hours of the
same day are laid under a liqiuor law, the magistrate has the dis-
cretion on the trial of one of the charges to rule out questions on
cross-examination of the witnesses for the prosecution as to their
presence at the time and place of the other offence, and to confine
the inquiry to the hours specifically mentioned in the information.
The proposed questions were not relevant to the issue or proper
for the purpose of discrediting the witness. R. v. Butterfield, 15
C. C. C. 101.
On a charge against a license-holder for supph-ing liquor to a
person interdicted by the license inspector as a habitual inebriate
under the Liquor License Act (Ont.), the prosecutor must not
only prove the notice of interdiction but also that the interdict
was in the habit of drinking to excess.
IMPRISONMENT — KEEPING LIQUOR FOR SALE. 367
Where a summary conviction was made without evidence that
the interdict was a habitual inebriate, the prosecutor will not be
allowed, on the defendant's appeal from the conviction, to supple-
ment his case by producing such evidence on the appeal and the
conviction will be quasbed. R. v. Morrison, 15 C. C. C. 215. See
also R. V. Bevan, 20 C. C. C. 237.
Hotel not a Public Place.
. A hotel is not a " public place " within the meaning of sec.
13 of 2 Geo. V, ch. 55, amending the Liquor License Act (Ont.) ;
such a " public place " must be a street, square, park or other ope 'i
place. R. V. Cooh, 20 C. C. C. 201.
Illegal Disposition op Liqttor.
See R. V. Clarke, 20 C. C. C. 486, as to the scope and meaning
of the word " disposal " as used in the Liquor License Act.
Imprisonment for Default.
Under tbe Canada Temperance Act imprisonment for non-pay-
ment of a fine imposed for a first offence may be ordered without
the necessity of a distress. R. v. McKinnon, 12 C. C. C. 414. See
also R. V. Whiting, 14 C. C. C. 414.
The provision of the Canada Temperance Act, sec. 100, which
fixes the penalty at '' not less than $50 or imprisonment for a term
not exceeding one month " applies to so limit the term of imprison-
ment only, when imposed as a punishment in the first instance,
and not when imposed for default of payment of the penalty.
Where a fine is imposed in the first instance, the punishment
in default of payment may be for any term not exceeding three
months under Code sec. 872. R. v. Blank, 10 C. C. C. 358. See
also R. V. Fraser, 20 C. C. C. 167, and Plante V. Cliche (No. 2).
20 C. C. C. 186.
Keeping Liquor for Sale.
The statutory presumption of keeping liquor for sale, which
arises upon the finding of liquor under a search warrant where the
Canada Temperance Act is in force, is supported by the circum-
stances that the liquor was kept concealed in an unusual manner.
R. V. McNutt, 11 C. C. C. 26. See also R. v. Nero, 23 C. C. C. 167.
368 LIMITATION OF TIME FOR PKOSECUTION.
An express agent who, as an employee of an express company,
receives intoxicating liquor shipped into a county where Part II. of
the Canada Temperance Act is in force may be personally liable
for keeping liquor for delivery contrary to sec. 127 of that Act
as amended, 7-8 Edw. VII. ch. 71. Ex parte Morison, 16 C. C. C.
28.
Infobmation, Sufficiency of.
An information for an offence under the Nova Scotia Liquor
License Act upon information and belief only, and not stating the
grounds of belief, is authorized by sec. 120 of that Act. R. v.
Power, 14 C. C. C. 264.
On a charge of unlawfully bringing intoxicating liquor into a
city where the Canada Temperance Act has been proclaimed, it is
not necessary to negative, in the information or conviction, the
exceptions contained in sec. 117 of the Canada Temperance Act
(amendment of 1908). Ex parte Mitchell, 16 C. C. C. 205.
Limitation op Time.
Where the time of the offence is stated in a summary con-
motion as being be»tween two dates, and includes a period prior to
the time limit for which information could be laid, the conviction
will be quashed for want of jurisdiction if the evidence does not
show that the offence was in fact committed within the time limit.
Ex parte Hehert, 15 C. C. C. 165.
An information for an offence under a liquor law, which omits
a material ingredient of the offence, cannot be amended by adding
the same after the expiry of the statutory limit for bringing a
prosecution.
Prohibition will issue to prevent the magistrate from proceed-
ing upon an information so amended after the expiry of the time
limit for bringing a charge. R. v. Speed, 17 C. C. C. 24. See
also n. V. O'Connor, 20 C. C. C. 75.
Minors, Sale to.
Under sec. 78 of the Ontario Liquor License Act as amended
by 7 Edw. VII. ch. 46, sec. 8, on a charge of selling liquor to a
minor, the conviction must shew that the vendee was either known
to the vendor to be under 21 or that he was apparently under that
age and, where the purchaser of the liquor is of adult stature and
WHO IS AN OCCUPANT — SALES BY PHYSICIANS. 369
weight, it is not sufiBcient for the prosecutor to shew merely that
the purchaser is in fact under 21. R. v. Farrell, 16 C. C. C. 419.
The doctrine of mens rea does not apply to the offence of a
licensee allowing the sale of liquor on the licensed premises to
minors, contrary to the Liquor Lioense Act, E. S, X. S. (1900),
ch. 100, and the proprietor may be convicted in respect of the
prohibited sale made by his bartender without his knowledge and
contrary to his orders. R. v. Quirk, 16 C. C. C. 391.
Occupant of Premises.
The owner of hotel premises which are leased by him to a
tenant is not an '' occupant " of the hotel within sec. 50 of the
Ontario Liquor License Act, as regards illegal sales of liquor made
without his knowledge or consent, although he resides in the hotel
as a boarder. R. v. Irish, 14 C. C. C. 458.
The effect of the Quebec Liquor License Act, as regards a
charge thereunder against a proprietor of refilling empty bottles
on the licensed premises, is that, if the offence is committed by any
person whatsoever in the employ of the proprietor, tenant or occu-
pant of the premises, or who has been suffered to be there, it is
conclusive evidence that it was done with the authority and under
the directions of such proprietor, tenant or occupant. White v.
Leel, 18 C. C. C. 337. See also R. v. Bradley, 19 C. C. C. 110,
and R. v. Rogers, 11 C. C. C. 257.
Physicians, Sales by.
A physician is not liable for selling liquor without a license
under the Quebec License Act in respect of intoxicating liquor pre-
scribed and sold by him in good faith. R. v. Chicoyne, 8 C. C. C.
507.
There must be a separate prescription for each authorized sup-
ply to be filed and recorded under sec.. 125 of the Canada Temper-
ance Act. R. V. Nugent, 15 C. C. C. 277.
See also R. v. McAllister, 22 C. C. C. 166.
Place of Sale oe Offence.
The place of sale is not necessarily the city in which an order
for liquor was accepted by the liquor dealer, but it may be in
c.c.p. — 24
370 PLACE OF SALE OR OFFENCE — RESTAURANT KEEPER.
another city in which the liquor was delivered to the bu3'er out of
a stock there kept. R. v. Bigelow, 9 C. C. C. 322,
A summary conviction is not necessarily bad because the par-
ticular part of the county in which the offence was committed is
not specified, provided the offence is stated to have been committed
in the county and the convicting magistrate had jurisdiction
throughout the whole county. R. v. Meikleham, 10 C. C. C. 382.
The offence of unlawfully causing intoxicating liquor to be
shipped into a place where the Canada Temperance Act has been
proclaimed is at least partly committed in the latter place, and
the magistrate there has jurisdiction to summarily convict for the
offence a person resident in another county who appears before him
charged with the offence.
Such jurisdiction may be supported under Code sec. 584 (b)
and 707, as well as under sec. 127 of the Canada Temperance Act
(amendment of 1908). Ex parte Mclntyre, 16 C. C. C. 38.
Previous Conviction.
See pages 363, 364.
Eestaurant Keeper.
A restaurant keeper who procures liquor for a guest in a non-
license town, but is unable to state from whom his messenger ob-
tained the liquor, is properly convicted under the Quebec License
Law, which makes deliver)^ of the liquor equivalent to a sale
thereof except where the delivery is gratuitous. R. v. Gunn, 10
C. C. C. 148. See, also, O'SulUvan v. Michm, 23 C. C. C. 169.
Sale or Disposal, What Amounts to.
Where admission tickets for a dance are sold with the under-
standing that the holder? are entitled to free beer thereat, and beer
is supplied accordingly by the proprietors entitled to share in any
profits realized, such disposal of the liquor consrtitutes a sale
thereof by the proprietors, and, if unlicensed, they are properly
convicted under a liquor license law for unlawfully selling liquor
without a license. R. v. Ruber, 14 C. C. C. 447.
Bringing intoxicating liquor into a city where the Canada
Temperance Act is in force, in contravention of the amending sec-
tions of 1908, is an unlawful "disposal" of liquor within the
terms of sec. 138 of the Act. Ex parte Mitchell, 16 C. C. C. 205.
local option district — search warrant. 371
BaijB in Labs£b. Qdanthies than License Permits.
See R. V. Campbell, 20 C. C. C. 490.
Sale in Local Option District.
A conviction for selling liquor or keeping liquor for sale, in
contravention of a local option municipal by-law prohibiting the
issue of liquor licenses, is a conviction under the Liquor License
Act for selling or keeping for sale " without a license " and is
subject to the same limitations as to review on certiorari and
habeas corpus as a conviction against a non-licensee in a district
in which licenses are issued. Be Leach and Fogarty, 18 C. C. C.
487.
Sale of Sacramental Wine. Sale on a Doctor's Certificate.
See R. V. McAllister, supra.
Search Warrant.
A search warrant for liquors may be issued under the Canada
Temperance Act (amendment of 1888) without first laying a
charge against the custodian of the liquors for keeping them for
sale. R. V. Townsend (Ko. 2), 11 C. C. C. 115, 12 C. C. C. 509.
See also Townsend v. BecTcwith, 14 C. 0. C. 353.
The invalidity of the information for a search Avarrant, issued
under the Canada Temperance Act, cannot be raised on certiorari
in respect of a conviction under a separate information against
the same person for illegally keeping liquor for sale.
If the evidence is sufficient to prove the keeping of liquor for
sale, the conviction will not be quashed because the liquor in ques-
tion was seized under a search warrant under the Canada Temper-
ance Act outside of the city limits and the information and con-
viction for keeping are expressed to be for an offence within the
city, if the magistrate had jurisdiction both in the city and at the
place of seizure. Ex parte Wilson, 15 C. C. C. 264.
The fact that the informant as chief of police laid the infor-
mation for and executed a search warrant under the Canada Tem-
. perance Act will not invalidate a summary conviction for keeping
liquor for sale, although based upon the result of the search under
the warrant. Ex parte Deivar, 15 C. C. C. 273.
372- SUSPENDING SENTENCE — TWO BARS.
A search warrant under the Canada Temperance Act, regular
and valid on its face and issued by the proper officer, is, until
quashed, a justification to the officer seizing or detaining the liquor
in accordance with the direction of the warrant, although the in-
formation did not authorize its issue, and it might have been
quashed or set aside on that ground had application been made.
McKeen v. Colpitis, 15 C. C. C. 488. See, however, Johnston V.
McDofugall, 17 C. C. C. 58, and page 92, ante.
As to liquor license inspector searching house for liquor sup-
posed to be kept in violation of law without a search warrant, see
R. V. Matheson, 21 C. C. C. 312.
Summons as foe Second Offence.
See R. V. Crouse (No. 2), 21 C. C. C. 243.
Suspending Sentence.
Where a liquor license statute imposes a minimum and maxi-
mum penalty for the offence of selling liquor without a license,
the magistrate is bound upon a plea of guilty to impose at least
the minimum sentence and he has no power to suspend sentence
upon payment of the costs of the prosecution.
The order of a magistrate illegally suspending sentence upon
certain conditions after a plea of guilty may be removed into a
Superior Court by certiorari for the purpose of being quashed at
the instance of the prosecutor. R. v. Verdon, 8 C. C. C. 352.
Two Baks.
In R. V. Lewis, 10 C. C. C. 184, it was held by Holt, Co.J.,
that the erection and use of an additional temporary bar in a
licensed hotel for one day only is not a " keeping " of more than
one bar in violation of sec. 65 of the Liquor License Act, E. S. 0.
ch. 245, and that a temporary bar so used in the hotel hall ad-
joining the regular bar-room does not constitute the hall a bar
room.
But in R. V. Genz, 22 C. C. C. 110, it was held that the main-
tenance of a separate extra bar in a licensed hotel, although tem-
porary and for one day only, is an infraction of the Liquor License
Act, E. S. 0. 1897, ch. 245, sec. 65, the inhibiting words of the
Act that not more than one bar shall be "kept," meaning that
UNCERTAINTY AS TO DATE OF OFFENCE. 373
more than one bar should not be used, and not involving the idea
of permanency or continued user. R. v. Lewis was dissented from.
Uncertainty as to Date of Offence.
A summary conviction under the Quebec Liquor License Act
in respect of a single offence of selling without a license on or
about a specified date " and at divers times before and since " is
not bad for uncertainty where by statute the time of the offence
is sufficiently proved, if shown to be within the four months' limi-
tation allowed for prosecution.
Such conviction would be an answer to another charge for an
offence committed on or about the date specified. B. v. Duhuc,
15 C. C. C. 353.
374 SUNDAY OBSERVANCE LAWS.
CHAPTER X.
Sunday Observance Laws — Lord's Day Acts.
This is another subject not specially noticed in the former
edition of this work, and, as offences against these statutes are
punishable on summary conviction, it has been thought advisable
to insert here a short chapter pointing out some of the recent de-
cisions of the Courts in cases arising under them.
Attorney-General's Consent to Prosecution.
The leave of the Attorney-General is a condition precedent to
the commencement of a prosecution under the Lord's Day Act,
and a magistrate has no jurisdiction to take the information unless
leave has already been granted.
Evidence of such leave must appear in the proceedings before
the magistrate, and in its absence the prosecutor will not be per-
mitted, upon a certiorari application, to prove that leave had been
granted before the information was laid. R. v. C P. Ry. Co., 12
C. C. C. 549.
The consent for the commencement of a prosecution may be
given by a member of the provincial executive council as acting
attorney-general and his authority need not be shewn, since it
will be presumed he was properly appointed to act in such
capacity.
It is not essential that the attorney-general's fiat should be in
evidence at the trial as part of the case for the prosecution, the
absence of such consent being a matter of defence. R. v. Thomp-
son, 22 C. C. C. 78. R. \. C. P. Ry. Co., supra, distinguished.
Barber's Shop — Keeping Open.
A conviction for " keeping a barber's shop open " on Sunday,
contrary to a municipal by-law, cannot be supported upon the
mere admission of the accused, when called upon to plead, that
he had shaved customers in his shop on the day named.
Semble, a barber who exercises his trade at his shop with the
doors barred cannot be said to be " keeping open." Re Lambert,
4 C. C. C. 533.
by-laws, unreasonable or ultra vires. 375
By-laws, Unreasonable or Ultra Vires,
A municipal by-law as to Sunday observance which exceeds in
its prohibition the terms of the provincial law by including classes
of persons not included by the latter is too wide in its scope, and
is void for unreasonableness. II . v. Petershy, 1 C, C. 0. 91.
Montreal City By-law N"o. 281, permitting the sale on Sunday
of " fruits, cigars, confectionary and temperance beverages " by
all persons who sell all these things and are not engaged in trade
is invalid as arbitrary and unjust, because it does not authorize
the sale of tobacco as well as cigars, and because it does not ex-
tend to all persons who are engaged in the same business. City
of Montreal v. Fortier, 6 C. C. C. 340.
Where a by-law passed in conformity with a provincial statute
purports to authorize certain Sunday sales of fruit and temper-
ance beverages, the provincial statute operates as a de facto
authority, which constitutes a good defence to a penal prosecu-
tion in respect of acts, which such legislation purports to authorize,
committed prior to the legislation being so declared ultra vires.
KoTtoliades v. Kennedy, 18 C. C. C. 495.
The Lord's Day Act, E. S. C. 1906, ch. 153, by the proviso in
sec. 5, enables a province to reduce the scope or mitigate the
severity of the general prohibition in respect of the topics men-
tioned therein, but does not clothe the province with power either
itself to deal generally with the matter of Sunday observance or
to .confer such powers on municipalities so as to enlarge the scope
of the Dominion Act; and a conviction under a municipal by-law
so framed under the Municipal Act, E. S. B. C. 1911, eh. 170,
cannot be sustained. R. v, ^Yaldon, 23 C. C. C. 122, 405,
Cab Driving.
Cab-driving on Sunday is not an offence by the cab-driver
under the Lord's Day Act of Ontario (R. S. 0. 1897, ch. 246;
E. S. 0. 1S87, ch. 203).
A conviction for doing worldly labour on Sunday contrary to
the Lord's Day Act is void for uncertainty, unless the acts con-
stituting the offence are specified. R. v. Somers, 1 C. C. C. 46.
Cigars — ^Sale Of.
In R. V. Lee, 17 C. C. C. 190, it was held by Morson, Co.J.,
that tobacco is a drug within the exception of sales for drugs for
the relief of sickness and suffering, contained in the Lord's Day
376 SALE OF CIGARS^ ICE CREAM, CANDIES, ETC.
Act, R. S. 0. 1906, ch. 153, sec. 12, and a druggist may legally
sell cigars and tobacco on Sunday upon the assumption that they
are required for such purposes. But in R. v. Wells, 18 C. C. C.
377, it was held by Middleton, J., that it is an offence under the
Ontario Lord's Day Act, C. S. U. C. ch. 104, for a druggist to
sell cigars on Sunday to all parties asking for them; such sales
are not protected by the exemption of " drugs and medicines " in
the statute.
The sale of cigars in a hotel on Sunday, otherwise than in
connection with, and as an incident to, a meal, is contrary to the
provisions of the Lord's Day Act, R. S. C. 1906, ch. 153, but a
hotel steward, taking no part in the running of the cigar stand,
is improperly convicted, under sec. 5, of carrying on his " ordinary
calling " in respect of Sunday sales there made, although he might
be liable, had the charge been made under sec. 14, if he were the
employer of the cigar stand attendant, and had authorized and
directed that the stand should be open on Sunda'v. R. v. Walsh,
22 C. C. 0. 145.
Farmer Building Fences.
A farmer who builds fences on his farm on a Sunday does not
thereby infringe the Lord's Day Ordinance (N.W.T.), such em-
ployment not being ejusdem generis with that of a mechanic,
workman or labourer. R. v. Hamren, 7 C. C. C. 188.
Ice Cream, Candies, &c.. Sale of.
Ice cream is a food and the keeper of a victualling house may
lawfully sell the same to his customers on Sunday, whether or
not other foods are supplied therewith. R. v. Alhertie, 3 C. C.
C. 356.
A confectioner whose business does not in fact include the
supplying of meals will not. by taking out a municipal victualling
house license, become privileged to sell ice cream preparations on
Sunday, although a similar sale by a person actually conducting
a victualling house would be exempt under the Sunday observance
statutes. R. v. Sabine, 8 C. C. C. 70. See R. v. Stinson, 10 C.
C. C. 16. Also R. V. Weatheral, 18 C. C. C. 372; R. v. Wells, 18
C. C. C. 377, and R. v. Brooler, 22 C. C. C. 146.
Newspapers — Sale of.
A newsdealer who sells newspapers on Sunday is liable to fine
as for an infraction of the Ontario " Lord's Day Act," C. S. TJ. C,
ch. 104.
POOL ROOMS — SHOPS — STORES— THEATRES. 37T
A newsdealer is a " tradesman " within the meaning of that
statute. B. v. Anderson, 10 C. C. C. 144.
Playing Cards for Money.
The unrepealed Lord's Day Act, C, S. U. C, eh. 104, sec. 3,
in force in Ontario, makes it a criminal offence to be engaged in
playing cards for money in a private place, on a Sunday. R. v.
Quid; 17 C. C. 0'. 61.
Pool Eooms.
In Re Fisher, 9 C. C. C. 453, Dubuc, C.X, dismissed an appli-
cation to quash a by-law requiring pool rooms to be closed on
Sunday, which application was based on the objection that the
by-law was ultra vires, because it related to Sabbath observance,
and was evidently passed in order to secure the observance of
Sunday, the Chief Justice holding that the by-law was good, as
the power conferred upon the municipality of regulating and
governing pool rooms included the conditions as to time and other-
wise under which the licensee was to have the benefit of the license.
This decision is also reported in 41 C. L. J. 622.
Sale of Land.
An agreement for the sale of land made on Sunday in P)ritisl>
Columbia is illegal as contravening sec. 5 of the Lord's Day
Act (Canada). Simpson v. Proestler. 21 C. C. C. 415.
Stores and Shops — Sales in.
The Quebec Sunday Observance Act, 7 Edw. VIT, ch. 42, is
not in conflict with the Dominion Lord's Day Act, E. S. C. 1906,
ch. 153, and, being recognized as valid by the Dominion statute,
the provincial statute is not subject to objection on the ground
that it is ultra vires. R. v. Panos (No. 1), 14 C. C. C. 291; R. v.
Panos (No. 2), 14 C. C. C. 408.
Theatres, &c. — Performances in.
The proprietor of a moving picture show who keeps his amuse-
ment hall open on Sundays as on week days, and charges an ad-
mission fee. thereby pursues his business or calling for gain on
Sunday in contravention of the Quebec Sunday Observance Aet
(1907), sec. 2. R. v. Ouimet, 14 C. C. C. 136."
378 PERFORMANCES IN THEATRES ULTRA VIRES STATUTES.
In construing penal statutes of the Province of Quebec,
which are enacted concurrently in both the English and French
languages, that version is to be taken which is most favourable to
the accused.
By carrying on a " moving picture " show on Sunday, at which
an admission fee is charged, the proprietor thereof does not violate
the Quebec Sunday Observance Act, prohibiting the pursuit of any
business or calling (exercer aucun negoce ou metier), as the cor-
responding words of the French version of the statute are
restricted to the* sale of goo<ls, mercantile affairs and the manual
occupations.
An exhibition of " moving pictures " showing events in the
life of Napoleon Bonaparte, without verbal explanation or musical
accompaniment, is not a theatrical performance within the pro-
hibition of that statute. R. v. Charron, 15 C. C. C. 241.
A municipal by-law of the City of Quebec which orders the
closing, on Sundays, of theatres and moving picture shows, under
penalty, is valid under the peace, order and good government
clause of the Olty Charter granted by the late Province of Canada
before Confederation, and which is still in force.
Such charter and the municipal by-laws thereby authorized are
a part of the provincial law within the saving clause (sec. 16)
of the federal statute, the Lord's Day Act, and are not repealed
or varied by the latter statute. Tremblay v. City of Quebec, 16
C. C. C. 487.
Fltra Vires Statutes — Constitutional Law.
A provincial statute relating ito criminal law passed before Con-
federation becomes as to that province a part of the criminal law
of Canada, and is subject to repeal or amendment by a Dominion
statute only.
A Sunday observance law of Nova Scotia passed before Con-
federation, which applied to individuals only, cannot be amended
by the legislature of that province so as to apply to corporations,
and a provincial Act purporting to so amend was held to be vJtra
vires. R. v. Halifax Electric Tramtvay Co., 1 C. C. C. 424.
The Ontario "Lord's Day Act," R. S. 0. 1897, ch. 246, is
ultra vires of the Ontario Legislature, as the subject matter thereof
comes under the classification of " criminal law," which, by the
British North America Act, is under the exclusive legislative
(authority of the Parliament of Canada. Attorney-General v.
Hamilton Street Railway, 7 C. C. C. 326.
ULTRA VIBES STATUTES — CONSTITUTIONAL LAW. 379
See also notes to this case commencing at p. 333.
See Re Lord's Day Act, 16 C C. C. 459, a decision of the
Supreme Court of Canada that the Deputy Attorney-General has
no authority to grant the leave of the Attorney-General required
for a prosecution for a violation of the Ix)rd's Day Act.
See also Kokoliadies v. Kennedy, 18 C. C. C. 495, reversing on
appeal Kennedy v. Kokoliadies, 17 C. C. C. 4.
The Act, 7 Edw. VII. (Que.), ch. 42, as amended by the
statute 9 Edw, VII (Que.), ch. 51, which, among other thing?,
prohibits, under penalty, the giving of theatrical performances on
Sunday for gain, except in case of necessity or urgency, is void,
because it is criminal legislation which, under sec. 91, sub-sec. 27,
of the British North America Act, is exclusively within the power
of the Dominion Parliament to enact. Ouimet v. Bazin, 20 C.
C. C. 458.
See also Audette v. Daniel, 21 C. C. C. 403, following Ouimet
V. Bazin, supra.
A conviction against a restaurant keeper under the Act respect-
ing the Observance of the Lord'. Day, C. S. N. B., ch. 107, for
selling meals on Sunday, will be set aside on the ground that such
Act was ultra vires of the Provincial Legislature. R. v. Marsh, 21
C. C. C. 413.
See also R. v. Laity, 21 C. C. C. 417, as to the constitutionality
of the Sunday Observance Act of British Columbia, passed in
1888. See also E. v. Waldon, supi'a. R. v. Panes (No. 1), 14 C.
C. C. 291, and R. v. Panos (No. 2), 14 C. 0. C. 408.
In R. V. The Stadium, 23 C. C. C. 84, it was held that rights as
to the doing of certain things on Sunday conferred upon an athletic
club by legislation of the Province of Quebec, previous to the Lord's
Day Act, E. S. C. 1906, eh. 153, were not taken away by that Act.
380 SUMMAEY TRIALS.
CHAPTER XL
Summary Trial of Indictable Offences.
Part XVI. of the Code.
The object and intention of the provisions of this part of the
Code is to provide an expeditious mode of trying indictable
offences, in order that time and expense may be saved, and that
an opportunity may be offered to persons charged with such
offences of taking a summary trial without having to go through
the formality of a preliminary inquiry and then trial by a jurv',
or by a County Court Judge under the provisions of Part XVIII.
of the Code.
As originally framed, these summary trials were restricted to
the class of cases mentioned in sees. 773, 774, 775 and the first
part of sec. 777, these provisions being taken from R. S. C, ch.
176, and their origin is no doubt based upon the English Sum-
mary Jurisdiction Act of 1879.
By 63-64 Vict., ch. 46 (Canada), sec. 776 was added, and by
sec. 3 of the same Act, the very important provisions of sub-sec. 2
of sec. 777 were also added.
These several sections require to be very carefully considered,
and magistrates should make themselves thoroughly conversant
with their provisions before proceeding under them.
As at present framed, the provisions of Part XVI. are cer-
tainly somewhat involved and confusing, and it seems a pity that
when the Code was revised in 1906 tHe whole of Part XVI. was
not recast and simplified.
The questions of the jurisdiction exercised under these sections,
and of the punishment to be awarded under convictions made for
offences tried summarily by magistrates, have been the subject of
many decisions in the Courts of the different provinces, as will
appear when the various cases are cited, and some of these de-
cisions are not easily to be reconciled.
The trend of recent amendments is to enlarge the scope and
powers of city magistrates, and we think this is wise, both in the
interests of efficiency and economy in the administration of jus-
tice, and also in the interest and well-being of those who are un-
fortunate enough to bring themselves within the pale of the law.
what magisteates may hold summary teials. 381
Inteepeetation.
771. In this Part, unless the context otherwise requires, —
(o) "magistrate" means and includes,
(i) in the provinces of Ontario, Quebec and Manitoba, any re-
corder, Judge of a County Court if a justice of the peace, com-
missioner of police. Judge of the sessions of the peace, and police
magistrate, district magistrate, or other functionary or tribunal,
invested by the proper legislative authority with power to do
alone such acts as are usually required to be done by two or
more justices, and acting within the local limits of his or of
its jurisdiction.
(ii) in the provinces of Nova Scotia and New Brunswick, any
recorder, Judge of a County Court, stipendiary magistrate or
police magistrate, acting within the local limits of his jurisdic-
tion, and any commissioner of police and any functionary, tri-
bunal or person invested by the proper legislative authority with
power to do alone such acts as are usually required to be done
by two or more justices of the peace.
(iii) in the provinces of British Columbia, and Prince Edward
Island, any two justices sitting together, and any functionary
or tribunal having the powers of two justices.
(iv) in the provinces of Saskatchewan and Alberta, a Judge of
any district Court or any two justices or any police magistrate
or other functionary or tribunal having the powers of two jus-
tices and acting within the local limits of his or its jurisdiction.
(v) in the Northwest Territories, any stipendiary magistrate,
any two justices sitting together and any functionary or tribunal
having the powers of two justices.
(vi) In the Yukon Territory, any Judge of the Territorial Courl,,
any two justices sitting together and any functionary or tribunal
having the powers of two Justices.
(vii) in all the provinces, where the defendant is charged with
any of the offences mentioned in paragraphs (a) and (/) of
section seven hundred and seventy-three, any two justices sitting
together ;
(6) "the common gaol or other place of confinement," in the case of
any offender whose age at the time of his conviction does not, in the
opinion of the magistrate, exceed sixteen years, includes any reform-
atory prison provided for the reception of juvenile offenders in the
province in which the conviction referred to takes place, and to
which by the law of that province the offender may be sent ; and,
(c) " property " includes everything within the meaning of " valuable
security," as defined by this Act.
2. In any case where the value of any valuable security is necessary
to be determined it shall be reckoned in the manner prescribed by section
four.
By paragraph (b) of sec. 29 of the Interpretation Act, R. S.
C, ch. 146, it is provided that a reference in any Act to The Sum-
mary Trials Act shall be construed as a reference to Part XVI.
of the Criminal Code.
From a careful perusal of sec. 771, it will be noted that the
word " magistrate " in this part has a different meaning in the
different provinces.
For instance, in Ontario, Quebec and Manitoba, it includes " a
Judge of the County Court if a justice of the peace," whereas in
382 JURISDICTION OF MAGISTEATES IN DIFFERENT PROVINCES.
Nova Scotia and New Brunswick, it means any Judge of a County
Court, whether he is a justice of the peace or not.
It expressly includes a commissioner of police only in Ontario,
Quebec, Manitoba, Nova Scotia and New Brunswick, but not in
the other provinces or territories, unless he would by the local
legislation have the powers of two justices.
Stipendiary magistrates are not mentioned per se as being in-
eluded in Ontario, Quebec, Manitoba, Saskatchewan, Alberta,
British Columbia or the Yukon, unless they can be classed under
the head of '■ other functionary or tribunal invested by the proper
legislative authority with power to do alone such acts as are usu-
ally required to be done by two or more justices,'' etc.
Stipendiary magistrates in these provinces certainly come
within this category, yet why not mention them specifically in
paragraph (i.) as they are in paragraphs (ii.) and (v.) ?
There can be no doubt that stipendiary magistrates are in-
cluded in all the provinces, otherwise sec. 777 wonld be incon-
sistent with, and repugnant to, sees. 771-773. In sec. 777, it will
be noticed that stipendiary magistrates are specifically mentioned,
and, being given this extended jurisdiction by sec. 777, they are
certainly also clothed with the limited powers given by sec. 773.
In British Columbia, Prince Edward Island, the Northwest
Territories and Yukon Territory, magistrate includes "any two
justices sitting together." And in Saskatchewan and Alberta,
" any two justices." The words " sitting together " are omitted
in paragraph iv., the draughtsman thinking no doubt these words
were superfluous: perhaps they are, but they should either be
omitted in all the paragraphs or included also in that relating to
Saskatche^'an and Alberta. Two justices cannot properly try a
case unless they are sitting together, and yet, in the absence of an
express enactment to this effect in paragraph iv,, a question as to
jurisdiction might arise.
And in all the provinces where the defendant is charged with
any of the offences mentioned in paragraphs (a) and (f) of sec.
773, a magistrate includes and means two justices sitting together.
Paragraph (a) of sec. 773 relates to theft, or obtaining money
or property by false pretences, or unlawfully receiving stolen pro-
perty, where the value of the property does not exceed $10.
A charge of assault occasioning actual bodily harm, which is
punishable as an indictable offence under Code sec. 395, is not
covered by paragraph (e) of see. 773, " unlawful wounding or
VALUABLE SECURITY JURISDICTION. 383
inflicting grievous bodily harm," although it is not so serious an
offence, and, therefore, a magistrate having jurisdiction only under
sec. 773 cannot try such a charge summarily, even with the con-
sent of the accused. R. v. Sharpe, 18 C. C. C. 132. But see,
contra, R. v. MartinuiJc, 22 C. C. C. 275, where, however, the exact
point decided in R. v. Sharps is not discussed. See, also, R. v.
Morton, 23 C. C. C. 172; R. v. ProTcopase, 23 C. C. C. 189.
And paragraph (f) relates to keeping a disorderly house under
sec. 22S.
By sub-see. 2, the values of valuable securities are to be de-
termined in the manner prescribed by sec. 4 of the Code, which
is as follows : —
4. Valuable security shall, where value is material, be deemed to be
of value equal to that of the unsatisfied money, chattel personal, share,
interest or deposit, for the securing or payment of which or delivery or
transfer or sale of which, or for the entitling or evidencing title to which,
such valuable security is applicable or to that of such money or chattel
personal, the payment or delivery of which is evidenced by such valuable
security.
AprLicATio^N OF Part XVI.
772. Nothing in this Part shall affect the provisions of Part XVII.,
and this Part shall not extend to persons punishable under that Part so
far as regards offences for which such persons may be punished thereunder.
Part XVII. relates to the trial of juvenile offenders for indiict-
able offences.
Jurisdiction.
773. Whenever any person is charged before a magistrate, —
(o) with theft, or obtaining money or property by false pretences,
or unlawfully receiving stolen property, where the value of the pro-
perty does not, in the judgment of the magistrate, exceed ten dol-
lars ; or,
(6) with attempt to commit theft; or,
(c) with unlawfully wounding or inflicting grievous bodily harm upon
any other person, either with or without a weapon or instrument ; or,
(d) with indecent assault upon a male person whose age does not, in
the opinion of the magistrate, exceed fourteen years, when such
assault is of a nature which cannot, in the opinion of the magistrate.
be sufficiently punished by a summary conviction before him under
any other Part ; or with indecent assault upon a female, not amount-
ing, in the magistrate's opinion, to an assault with intent to com-
mit a rape ; or,
(e) with assaulting or obstructing any public or peace oflScer engaged
in the execution of his duty, or any person acting in aid of such
ofiicer ; or,
(/) with keeping a disorderly house under section 228; or,
(g) with any offence under section two hundred and thirty-five;
the magistrate may. subject to the subsequent provisions of this Part, hear
and determine the charge in a summary way.
384 MAGISTRATES WITH RESTRICTED JURISDICTION.
The ''magistrate" referred to in this section includes and
means magistrates as defined by sec. 771. And in all the pro-
vinces any two justices of the peace sitting together have jurisdic-
tion to try offenders charged under paragraphs (a) and (f). And
it is only in British Columbia, Prince Edward Island, Saskatche-
wan, Alberta, the Northwest Territories and the Yukon Territory
that two justices of the peace, sitting together, have jurisdiction
to try the offences enumerated in the other paragraphs of this
section.
The question has been raised as to whether the word " theft "
in this section includes " theft from the person," and it has been
the subject of judicial inquiry and decision.
In R. V. Conlin, (1897) 1 C. C. C. 41, Boyd, 0., in his judg-
ment, at p. 45, says : " I favour the argument of Mr. DuVemet,
that the word 'theft,' as used in sec. 783 (now sec. 773), is of
generic import, and is meant to cover the case of 'stealing from
the person,' etc."
The definition of the word "theft," as used in sec. 793 (now
773), was not decisive of the case of R. v. Conlin, since the accused
had been tried and convicted by the police magistrate of the city
of Hamilton, having first consented to be so tried, so that the
magistrate had complete jurisdiction in any event under the pro-
visions of sec. 777. And see R. v. Morgan, post.
The theft of a bundle of tied letters by one act is a single
offence, and, when the total value exceeds $10, a magistrate, having
jurisdiction only under sec. 773, has no jurisdiction to try the
thief summarily under that section on a charge of stealing one of
the letters containing exactly $10. R. v. Pope, 22 C. C. C. 327.
This brings us to a distcussion of an important feature relating
to the jurisdiction of the magistrates under this part, which might
as well be disposed of here.
It is necessary to make it clear that all the magistrates who
have jurisdiction to try the offences mentioned in sec. 773 have
not the jurisdiction to try offences which may be tried by a Court
of General Sessions of the Peace, as provided by sec. 777.
T Police and stipendiary magistrates in any county or district
or provisional county in Ontario, and police and stipendiary magis-
trates of cities and incorporated towns having a population of not
less than 2,500, in all the provinces, and the recorder of any such
city or town, if he exercises judicial functions, and the Judges
of the Territorial Courts and police magistrates in the Yukon
MAQISTEATES HAVING EESTRICTED JURISDICTION. 385
Territory, and district magistrates and Judges of Sessions in
Quebec, have each and all of them power to try any indictable
offences for which an offender may be tried at a Court of General
Sessions, under the provisions of sec. 777.
The magistrate mentioned in sec. 773 is the magistrate meant
and included and defined in sec. 771. And, while in this class of
magistrates are included those mentioned in sec. 777, yet many
of those mention in 771 are excluded from the more extended
jurisdiction given by sec. 777. For instance, while a police or
stipendiary magistrate appointed for a county or district in Nova
Scotia, and whose jurisdiction does not extend to or include a
city or town of not less than 2,500 inhabitants in his county or
district, would have complete jurisdiction to hear and determine
the various offences enumerated in sec. 773, yet such a magistrate
is not vested wth the general authority given by sec. 777.
While any and all police magistrates in Manitoba, Saskatche-
wan, Alberta, and British Columbia have jurisdiction under sec.
773, the class of magistrates in these provinces who have juris-
diction under sec. 777 is limited to police magistrates of cities
and incorporated towns of not less than 2,500.
Or, to put it in another way, while a magistrate, having juris-
diction in an incorporated town in the above provinces of, say,
2,000 people, can exercise the power vested in him by sec. 773, this
same magistrate cannot exercise the general authority given to
magistrates under sec. 777, and his jurisdiction will be thus
limited, so long as the population of his town remains under
2,500.
Whenever any person is charged before a magistrate with any
of the offences enumerated in sec. 773, the magistrate may, sub-
ject to the subsequent provisions of this part, hear and determine
the charge in a summary way.
That is, a magistrate may hear and determine the charge; he
is not compelled to do so. and, as we will notice presently, it is
entirely optional with the magistrate whether or not he exercises
the jurisdiction given him by this Fart.
If he does undertake to hear and determine the charge, then
the magistrate must so hear it after having fully complied with
the subsequent provisions of this Part, that is, he must follow
strictly the procedure set out in sec. 778, and subsequent sections
relating to procedure.
c.c.p. — 25
386 JURISDICTION OF MAGISTRATES UNDER SEC. 773.
A magistrate having a prisoner before him upon a charge of
theft, may convict such prisoner of attempting to commit the theft.
E. V. Morgan, (1901) 5 C. C. C. 63.
The offence of theft from the person is sufficiently described
in the conviction in popular language as "picking the pocket of
a person." Ibid.
In B. V. Crossen, (1899) 12 M. E. 571, and 3 C. C. C. 152,
the writ of certiorari applied for was granted on the ground that
the offence charged came within sec. 783 (e) (now 773 (e)) of
the Code and subsequent sections, and that the parties could not
have been tried summarily except by compliance with sec. 786
(now sec. 778) of the Code, notwithstanding the provisions of
sec. 144 (now sec. 169).
This decision is not understandable as reported. The report
must be imperfect. Perhaps what did occur was that the justices
inflicted punishment beyond their jurisdiction on summary con-
viction. As to the power of two justices trying a case like this
summarily without having to comply with the procedure laid down
in sec. 778, there can be no possible doubt. Sec. 144 of the old
Code (now sec. 169), expressly enacts that every one guilty of
the offence is liable "on summary conviction before two justices
of the peace to six months' imprisonment, with hard labour, or to
a fine of one hundred dollars." Surely this enactment clearly
establishes that a person charged for an offence under sec. 144
(now 169) can be convicted by two justices on summary conviction.
If the justices in R. v. Crossen proceeded under the summary
conviction clauses (now Part XV.) and the punishment they
awarded did not exceed the limit prescribed by sec. 144 (now 169),
with all due deference, it is hard to comprehend the decision as
reported.
[The present editor is in a position to support the opinion of
the author here given, as he was counsel for the Crown at the
argument and can state that, for a reason not necessary to give,
the Crown was not especially anxious to sustain the conviction,
and sub-sec. 2 of sec. 784 (now 774) was not drawn to the atten-
tion of the Court.]
The question as to the offence of resisting or wilfully obstruct-
ing a peace oflBcer in the execution of his duty being tried sum-
marily by two justices of the peace, or by a police magistrate, by
way of summary conviction under Part XV., has been the subject
of two decisions in the Courts of British Columbia, disapproving
of that in R. v. Crossen.
EESISTING OR OBSTRUCTING A PEACE OFFICER. 387
The first case is that of R. v. Nelson, (1901) 4 C. C. C. 461,
in which case the accused was tried bj^ the police magistrate of
Victoria by way of summary conviction.
Mr. Justice Drake, at p. 463, says, speaking of the decision
in B. V. Crossen, supra : " No reasons are given for this judgment,
and, although the Court giving this judgment is entitled to the
greatest respect, yet until I have some reasons given for the views
there adopted, I hesitate to follow it. To do so would be to ignore
the language of sec. 144 (now 169), to which, in my opinion, full
effect can be given."
In R. v. Jack (No. 2), (1902) 5 C. C. C. 304, Mr. Justice
Walkem held that " The summary conviction referred to in seo.
144 (now 169) means a summary conviction under Part LVIII.
(now XV.) of the Code, and such the present conviction is." It
was also held that that section, 144 (now 169), is not controlled
by sees. 783 and 784 (now sees. 773 and 774).
The learned Judge also said : " It will thus be apparent that
the punishment mentioned in sec. 788 (now sec. 781) differs
materially from that mentioned in sec. 144 (now 169), although
the offence is the same. Section 783 (now sec. 773) also contains
the word 'assaulted,' which is absent in sec. 144 (now 169)."
In R. V. Koolherger, 16 C. C. C. 228, Cross, J., inclined to agree
with the Crossen case, although he actually decided that the con-
viction was bad, because it adjudged the defendant guilty of wil-
fully obstructing a public officer, and the case was re-tried on the
defendant's appeal from the conviction with his consent.
The offence of " assaulting " a peace officer, unrier !^e^, 296 of
the Code, is an indictable offence and punishable by two yeajs'
imprisonment, and can only be disposed of summarily b^ a magis-
trate acting under the powers vested in him by sec. 773 or sec.
777. If. however, the magistrate has not the extended powers
conferred by sec. 777, the imprisonment awarded by him would be
limited to six months. Sec. 781^
Of sec. 773, the part that has most frequently engaged the
attention of our Superior Courts by way of appeal, on certiorari
and habeas corpus proceedings, is paragraph (f) "keeping a dis-
orderly house under sec. 228."
In the original Cbde, and until the amendment of 1909 (8-9
Edw. VII, ch. 9), this section read "with keeping, or being an
inmate, or habitual frequenter of any disorderly house, house of
ill-fame or bawdy house." As the paragraph now stands, it is
limited to " keeping a disorderly house under sec. 228."
388 DISORDEKLY HOUSE OFFENCES.
Inmates and habitual frequenters of houses of ill-fame are
dealt with by paragraphs (j) and (k) of sec. 238 of the Code—
the section dealing with vagrancy.
A person convicted of keeping a disorderly house under sec.
228, or of an offence included in paragraph (a) of sec. 773, has a
right of appeal, as provided by sec. 797, post.
See the notes to sec. 238 in Crankshaw, 3rd ed. (1910), at
pp. 251-257. Also Tremeear, 2nd ed. (1908), pp, 170-178.
Disorderly Housr.
Section 228, as amended in 1909 (8-9 Edw. VII. ch. 9) and
in 1913 (ch. 13, sec. 10), is as follows: —
228. Every one is guilty of an indictable offence and liable to one
year's imprisonment who keeps any disorderly bouse, tbat is to say, any
common bawdy-bouse, common gaming-bouse, common betting-bouse, or
opium joint, as hereinbefore defined.
2. Any one who appears, acts or behaves as master or mistress, or as
the person having the care, government or management, of any disorderly
house, or as assisting in such care, government or management, shall be
deemed to be the keeper thereof, and shall be liable to be prosecuted and
punished as such, although in fact he or she is not the real owner or keeper
thereof.
Here follows sec. 22gA enacted in 1913 for the punishment of
landlords and others having charge or control of disorderly houses :
228a. Any one who, as landlord, lessor, tenant, occupier, agent or
otherwise, has charge or control of any premises and knowingly permits
such premises or any part thereof to be let or used for the purposes of a
disorderly house, shall be liable upon summary conviction to a fine of two
hundred dollars and costs, or to imprisonment not exceeding two months,
or to both fine and imprisonment.
2. If the landlord, lessor or agent of premises in respect of which any
person has been convicted as the keeper of a common bawdy house fails,
after such conviction has been brought to his notice, to exercise any right
he may have to determine the tenancy or right of occupation of the person
so convicted, and subsequently any such offence is again committed on the
said premises, such landlord, lessor or agent shall be deemed to be a keeper
of a common bawdy house unless he proves that he has taken all reason-
able steps to prevent the recurrence of the offence.
Being found, without lawful excuse, in any disorderly house
is punishable under sec. 229.
229. Every one who, without lawful excuse, is found in any disorderly
house shall be liable on summary conviction to a penalty not exceeding one
hundred dollars and costs and in default of payment to two months' im-
prisonment.
A common bawdy house is defined by sec. 225 of the Code, a
common gaming house by sec. 226, a common betting house by
SEAEOHES IN DISOKDERLY HOUSES. 389
sec. 227, and an opium joint by sec. 227A. See the notes in
Crankehaw and Tremeear to these several sections.
As to searching for women in houses of ill-fame, see sec. 640
of the Code.
Searching gaming houses, betting houses and lotteries, see sec.
641, as re-enacted in 1913. Search and seizure in opium joints,
see sec. 642A. Searching for vagrants in disorderly houses, see
sec. 643.
As to betting on the street, in front of the defendant's fixed
place of business, see E. v. Johnstone, 16 C. G. C. 379.
A newsdealer or newsboy selling newspapers containing in-
formation intended for use in betting or pool-selling, contrary to
Code sec. 235 (as amended in 1910), if himself without criminal
intent, would not be guilty under that section, although the printer
or publisher might be. R. v. LuttreU, 18 C. C. C. 295.
As to prima fade evidence in prosecutions under sec. 228 for
keeping a gaming house, or playing or looking on under sec. 229,
see the provisions of sees. 985 and 986 of the Code.
Search foe Women in Houses of Ill-fame.
640. Whenever there is reason to believe that any woman or girl,
mentioned in section two hundred and sixteen of this Act, has been inveigled
or enticed to a house of ill-fame or assignation, then upon complaint
thereof being made under oath by the parent, husband, master or guardian
of such woman or girl, or in the event of such woman or girl having no
known parent, husband, master or guardian in the place in which the
offence is alleged to have been committed, by any other person, to any
justice, or to a Judge of any Court authorized to issue warrants in cases
of alleged offences against the criminal law, such justice or Judge may issue
a warrant to enter, by day or night, such house of ill-fame or assignation,
and if necessary use force for the purpose of effecting such entry whether
by breaking open doors or otherwise, and to search for such woman or girl,
and bring her and the person or persons in whose keeping and possession
she is before such justice or Judge, who may, on examination, order her to
be delivered to her parent, husband, master or guardian, or to be discharged,
as laAv and justice require.
Searching Disorderly Houses^ &c.
Section 641 as re-enacted in 1913 (e. 13, s. 21).
641. If a constable or other peace oflBcer of any city, town, incorpor-
ated village or other municipality or district, organized or unorganized, or
place, reports in writing to the mayor or chief magistrate or to the police,
stipendiary or district magistrate of such city, town, incorporated village
or other municipality, district or place, or to any police or stipendiary
magistrate having jurisdiction there, or, if there be no such mayor or chief
magistrate, or police, stipendiary or district magistrate, to any justice hav-
ing such jurisdiction, that there are good grounds for believing, and that
he does believe, that any house, room or place within the said city, or
town, incorporated village or other municipality, district or place is kept
390 SEARCHES IN DISOKDERLT HOUSES, ETC,
or used as a disorderly house as defined by section two hundred and twenty-
eight; or for betting, wagering or pool selling contrary to the provi-
sions of section two hundred and thirty-five, or for the purpose of carrying
on a lattery or for the sale of lottery tickets, or for the purpose of con-
ducting or carrying on any scheme, contrivance or operation for the pur-
pose of determining the winners in any lottery contrary to the provisions
of section two hundred and thirty-six, whether admission thereto is limited
to those possessed of entrance keys or otherwise; such mayor, chief mag-
istrate, police, stipendiary or district magistrate or justice, may, by order
in writing, authorize the constable or other peace oflScer to enter and
search any such house, room or place with such other constables or peace
ofiicers as are deemed requisite by him, and such peace oflicer or peace of-
ficers may thereupon enter and search all parts of such house, room or
place and if necessary may use force for the purpose of effecting such
entry, whether by breaking open doors, or otherwise, and may take into
custody all persons who are found therein and may seize all tables and
instruments of gaming, wagering or betting and all moneys and securities
for money and all instruments or devices for the carrying on of a lottery,
or of any scheme, contrivance or operation for determining the winners in
any lottery, and all lottery tickets and all intoxicating liquors and all
opium and devices, pipes or apparatus for preparing or for smoking or
inhaling opium and all circulars, advertisements, printed matter, stationery
and things which may be found in such house or premises which appear
to have been used or to be intended for use for any illegal purpose or
business, and shall bring the same before the person issuing such order or
any justice, to be by him dealt with according to law.
2. The person issuing such order, or the justice before whom any per-
son is taken by virtue of an order under this section, may direct that any
money or securities for money so seized shall be forfeited to the Crown
for the public uses of Canada, and that any other thing seized shall be
destroyed or otherwise disposed of; provided that nothing shall be destroyed
or disposed of pending any appeal or any proceeding in which the right
of seizure is questioned or before the time within which such appeal or
other proceeding may be taken has expired.
As to the powers of a deputy high constable proceeding under
sec. 641, see O'Neill v. Attorney-General of Canada, (1S96) 1 C.
C. C. 303, 26 S. 0. R. 132.
Power of Magistrate as to Examination op Persons Appre-
hended UNDER Section 641.
642. The person issuing such order or the justice before whom any
person who has been found in any house, room or place, entered in pur-
suance of any order under the last preceding section, is taken by virtue of
such order, may require any such person to be examined on oath and to
give evidence touching any unlawful gaming in such house, room or place,
or touching any act done for the purpose of preventing, obstructing or
delaying the entry into such house, room or place, or any part thereof, of
any constable or officer authorized to make such entry ; and any such per-
son so required to be examined as a witness who refuses to make oath
accordingly, or to answer any question, shall be subject to be dealt with
in all respects as any person appearing as a witness before any justice or
Court in obedience to a summons or subpoena, and refusing without lawful
cause or excuse to be sworn or to give evidence, may, by law, be dealt with.
2. Every person so required to be examined as a witness, who. upon
such examination, makes true disclosure, to the best of his knowledge, of
all things as to which he is examined, shall receive from the Judge, justice,
magistrate, examiner or other judicial officer before whom such proceeding
is had, a certificate in writing to that effect, and shall be freed from all
criminal prosecutions and penal actions, and from all penalties, forfeitures
and punishments to which he has become liable for anything done before
OTHER SEAECHES PRIMA FACIE EVIDENCE OF GAMING. 391
that time in respect of any act of gaming regarding which he has been so
examined, if such certificate states that such witness made a
true disclosure in respect to all things as to which he was examined ;
and any action, indictment or proceeding pending or brought in
any Court against such witness in respect of any act of gaming regard-
ing which he was so examined, shall be stayed, upon the production and
proof of such certificate, and upon summary application to the Court in
which such action, indictment or proceeding is pending, or any Judge
thereof, or any Judge of any of the superior Courts of any province.
Search and Seizure in Opium Joints.
" 642a. The provisions of sections 641 and 642 shaU apply to searches
in opium joints and to the seizure of devices, pipes or apparatus for pre-
paring for smoking or inhaling, or for smoking or inhaling opium, and all
couches, beds and chairs in such joints, and to the proceedings thereupon."
Search for Vagrants in Disorderly Houses.
643. Any stipendiary or police magistrate, mayor or warden, or
any two justices, upon information before them made, that any person
described in Part V. as a loose, idle or disorderly person, or vagrant, is or
is reasonably suspected to be harboured or concealed in any disorderly
house, bawdy-house, house of iU-fame, tavern or boarding-house, may, by
warrant, authorize any constable or other person to enter at any time such
house or tavern, and to apprehend and bring before them or any other
justices, every person found therein so suspected as aforesaid.
Prima Facie Evidence of Gaming Houses.
985. When any cards, dice, balls, counters, tables or other instru-
ments of gaming used in playing any unlawf\jl game are found in any
house, room or place suspected to be used as'a common gaming house,
and entered under a warrant or order issued under this Act, or about the
person of any of those who are found therein, it shall be prima facie
evidence, on the trial of a prosecution under section two hundred and
twenty-eight or section two hundred and twenty-nine, that such house, room
or place is used as a common gaming house, and that the persons found
in the room or place where such instruments of gaming are found were
playing therein, although no play was actually going on in the presence of
the ofllcer entering the same under such warrant or order, or in the presence
of the persons by whom he is accompanied.
If the evidence here referred to was obtained on a search war-
rant, it will be admissible, irrespective of a claim by the accused
that the search warrant was illegal. B. v. Honan, 20 C. C. C. 10.
But see E. v. Hung Gee, 21 C. C. C. 404, and R. v. Jung Lee, 32
C. C. C. 63, as to circumstances which will prevent the statutory
presumption from arising.
986. In any prosecution under section two hundred and twenty-eight
or under section two hundred and twenty-nine, it shall be prima facte
evidence that a house, room or place is a disorderly house if any constable
or officer authorized to enter any house, room or place is wilfully pre-
vented from or obstructed or delayed in entering the same, or any part
thereof; and if any house, room or place is found fitted or provided with
any means or contrivance for unlawful gaming or betting or for opium
smoking or inhaling or with any device for concealing, removing or destroy-
ing such means or contrivance, it shall be prima facie evidence that such
392 CHAEGES AGAINST COEPOEATIONS.
house, room or place is a common gaming bouse, common betting bouse or
opium joint, as tbe means of contrivance may indicate.
Offences under sec. 235, mentioned in paragraph (g) of sec.
773, are in relation to betting and pool selling. Section 235 was Re-
pealed and a new section substituted in the amendments made to
the Code in 1910; these are important and should be referred to.
The provisions of sec. 985 do not relieve the prosecutor from
the onus of proof required to establish that the place was kept
for gain and that persons resorted to the house for the purpose
of playing. E. v. See Wo, (1910) 16 C. C. C. 213.
Fan tan is not "per se an unlawful game. Ihid. and B. v. Himg
Gee, 21 C. C. C, 404. See also R. v. Jung Lee, supra.
Chaeqes against Coepoeations.
" 773a. When the person to be so charged is a corporation, the sum-
mons may be served on the mayor or chief officer of such corporation, or
upon the clerk or secretary or the like officer thereof, and may be in the
same form as if the defendant were a natural person.
"2. The corporation in such case shall appear by attorney, vpho may
on its behalf elect, and confess or deny the charge, and thereupon the case
shall proceed as if the defendant were a natural person.
" 3. If the corporation does not appear and confess or deny the charge,
the magistrate may proceed in the absence of the defendant, as upon a
preliminary investigation."
This amendment was made in 1909. Presumably it includes
all corporations, municipal and otherwise, although it does not
say so. A " corporation " is not defined in either the Interpreta-
tion Act, R. S. C. ch. 1, or in sec. 2 of the Code. There is no doubt
it includes a municipal corporation since it speaks of the " mayor "
■ of such corporation. All doubt would have been spared if the
words " municipal or otherwise " had followed the word " corpora-
tion " in the first line. Evidently the use of the words " chief
officer " and "secretary" have been thought suflBcient to identify
corporations other than municipal, and pending amplification by
future amendment we will in the meantime read the section as
including all corporations, since that may be accepted as a reason-
able intendment.
Absolute Jueisdiction of Magistbate.
Disorderly House.
" 774. The jurisdiction of the magistrate is absolute in the case of any
person charged with keeping a disorderly house, or with being an inmate
or habitual frequenter of a common bawdy-house, and does not depend on
WHEN MAGISTEATE's JUEISDICTION ABSOLUTE, 393
the consent of the person charged to be tried by such magistrate, nor shall
such person be asked if he consents to be so tried,
" 2, The provisions of this Part do not affect any absolute summary
jurisdiction given to justice's by any other Part of this Act,"
The disorderly houses referred to are those mentioned in see.
228, and include common bawdy, common gaming and common
betting houses, or opium joints, as already referred to.
This section gives all magistrates as defined by sec. 771, juris-
diction to try the ojffence of keeping a disorderly house without the
consent of the person charged. Keeping a disorderly house is by
sec. 228 made an indictable offence punishable with one year's
imprisonment and any such magistrate may try such a charge sum-
marily without the consent of the accused. R. v. Honan, 20 C. C.
C. 10 ;R. V. Jung Lee, 22 C. C. C. 63. See also R. v. Early (No.
3), 14 C. C. C. 10.
The punishment, however, is governed by section 781, and
even a city magistrate, having the more extensive jurisdiction con-
ferred by section 777, cannot sentence the offender to imprison-
ment for more than six months, unless, perhaps, he has obtained
the consent of the accused to be tried summarily. R. v. Shing, 20
M. E, 214, 17 C. C, C. 463, As to this last qualification, there
would seem to be little basis for it since section 774 expressly says,
" nor shall such person be asked if he consents to be so tried."
It seems to the writer a reasonable proposition that the maxi-
mum of punishment to which a person found guilty of any given
offence is liable should be the same whether he is tried by one
magistrate or by another, and, if this is correct, no city magistrate,
trying any case included in sec. 773, with or without the consent
of the accused, has power to impose any greater sentence than a
police magistrate in the country could, subject, however, to the
special jurisdiction given to police map^istrates in cities of 25.000
population by sub-sec. 5 of sec. 777, post. This principle is sup-
ported by ti. Y, bliing, supra, and R. v. Randolph, 4 C. C. C. 165,
but would, not of course apply so as to prevent a heavier sentence
being imposed upon conviction for an indictable offence, such as
common assault, actually tried upon an indictment, than could be
imposed if the offence were treated as a summary conviction mat-
ter, as it might be in a case of some offences at the option of the
prosecution. See R. v. Sarah Smith, post.
It is not easy to see why the offence of " being an inmate or
habitual frequenter of a common bawdy house " is still retained in
this section, because it is nowhere in the Code made an indictable
394 PUNISHMENT IN SUMMARY TRIALS.
offence, and is indeed only made punishable as one of the various
things constituting vagrancy under sec. 238, which is punishable
on summary conviction by sec. 239. Section 774, therefore, may
be read as if the words above quoted had been omitted.
If a person is charged under sec. 773 (f) with keeping a dis-
orderly house under sec. 228 and tried before a magistrate, the
punishment prescribed by sec. 781 is imprisonment with or with-
out hard labour for any term not exceeding six months, or a fine
not exceeding, with costs in the case, $200, or to both fine and im-
prisonment not exceeding the said sum and term.
The "disorderly house'' mentioned in paragraph (j) of sec.
238 was, prior to the amendment of the Code in 1909, held to be
ejusdem generis with a bawdy house, or house of ill-fame, and
did not refer to a common gaming house, or betting house or
opium joint referred to in sec. 22?. See R. v. France and R. v.
Lee Guey, post; but, since that amendment, such places would be
disorderly houses under sees. 773 and 774.
Upon an examination of the information a magistrate can
readily ascertain as to whether the charge of keeping a disorderly
house, to wit: a bawdy house, is laid under sec. 238 or 228. If
under the former, the charge should always conclude with the
words "being thereby a loose, idle and disorderly person and a
vagrant."
As it is only under sec. 238 that inmates and frequenters of
bawdy houses can be dealt with, the charge in these informations,
like all other charges under sec. 238, should conclude with these
words. As to habitual frequenters, see R. v. Lamothe, (1908) 15
C. C. C. 62.
A man cannot be convicted under sees. 225, 228, and 238 of
being an inmate of a bawdy house, since those sections apply only
to female inmates. R. v. Knowles, 21 C. C. C. 321.
The change made in paragraph (j) of sec. 773 by the amend-
ment of 1909 was, no doubt, occasioned by the judgment of the
Court of Appeal for Ontario in R. v. Lee Guey, (1907) 13 C. C.
C. 80, which followed the reasoning of the majority decision of the
Court of Appeal in Quebec in R. v. France, (1898) 1 C. C. C. 321.
In R. V. Lee Guey the Court held that the meaning of the
words "disorderly house," as used in sec. 238 (j), as well as in
sec. 773, is governed by the rule " noscitur a sociis" and is there-
fore restricted to houses of the same class as houses of ill-fame or
bawdy houses. This is the meaning given to the words " disor-
derly house" in sec. 238 (j), the vagrancy clause.
CASES AS TO DISORDERLY HOUSES. 395
As to a summary conviction for keeping a disorderly house,
without charging vagrancy, see E. v. Demetrio, 20 C. C. C. 316.
In Ex parte John CooTc, (1895) 3 C. C. C. 72, approved in B.
V. Ah Sam, 12 0. C. C. 538, Mr. Justice Drake of the Supreme
Court of B. C. held that a police magistrate had jurisdiction to
deal with gaming houses as falling within the category of disor-
derly houses as defined by sec. 198 (now 228).
The learned Judge also held that the jurisdiction of the magis-
trate was optional, the language used being that he may determine
the charge in a summary way. He says: '^li he concludes io
exercise the lunsdiction. the person charged cannot object, and
^e 'Act further provides that if, after having commenced the in-
vestigation under Part LY. (now XY.) he may even then — sec.
791 (now sec. 784) — at the close of the evidence for the prosecu-
tion send up the case for trial. Therefore the magistrate cannot
be compelled by mandamus to hear and determine the present
charge. Where a discretion is vested in a subordinate officer or
tribunal, the Court cannot compel a particular course to be
adopted ; the exercise of the discretion by the officer or tribunal is
a complete justification."
The above decision, so far as it holds that " a gaming house
cor-"^s within the meaning of a ' disorderly house ' in sec. 783 (now
773)," is in direct conflict with E. y. France and E. v. Lee Guey,
supra.
In E. V. Flynn, (1905) 9 C. C. C. 550, Mr. Justice Craig oE
the Yukon Court disapproved of E. v. France and concurred in the
dissenting judgment of Bosse^ J.
It is now all settled by the amendment of 1909, and jurisdiction
is clearly given to magistrates to hear and determine all charges
which may be brought for keeping any kind of disorderly house
under sec. 228.
In E. V. Sarah Smith, (1905) 9 C. C. C. 338, Russell, J., re-
served the following point for the consideration of the Supreme
Court of Nova Scotia : —
"Does either sec. 207 (j) (now sec. 238) or 783 (f) (now 773)
of the criminal Code repeal sec. 198 (now 228) of the Code? If
so, the defendant will be entitled to have the conviction against
her quashed."
The prisoner was indicted under sees. 195 (now 225) and 198
(now 228) with keeping a disorderly house, to wit, a common
bawdy house in the City of Halifax. The prisoner was convicted,
but not sentenced, pending the decision of the full Court.
396 HABEAS CORPUS AND CEKTIORABI WILL LIB.
The Court held that sec. 783 (f ) (now 7\73) is pure procedure
and enables the offence to be disposed of by a summary trial when
the defendant is brought before a magistrate charged with the
offence. ..." The object of Parliament was plain, viz., to
enable the prosecutor to proceed either by indictment, or by sum-
mary conviction, and the punishment is adapted to the tribunal
which in either case is called on to deal with the offender. It has
dealt with the subject of assault in the same way, and there are
alternative penalties and tribunals." The conviction was affirmed.
The amendment to sec. 773 (f) in 1909 disposes of the deci-
sion of Weatherbe, J., in R. v. Keeping, (1901) 4 C. C. C. 49*4,
which, so far as relates to the question of jurisdiction, is hard to
understand.
A conviction made by a magistrate in respect to a charge under
Part XVI. of the Code of an indictable offence which the magis-
trate has absolute jurisdiction to try without the consent of the
accused, is subject to be inquired into upon habeas corpus and
certiorari proceedings. And this, notwithstanding the provisions
of sec. 798 (now 791), which declares that "Every conviction
under this Part shall have the same effect as a conviction upon
indictment for the same offence." E. v. St. Clair, (1900) 3 C. C.
C. 551.
A conviction upon a charge of keeping, or being an inmate of, a
bawdy house should not be made upon evidence of general reputa-
tion only. The prosecution should be required to produce proof
of acts, or conduct, from which the character of the house may be
inferred. The conduct of the women when arrested and what they
said may properly be proved in support of the charge. Ihid.
On a charge of being an inmate of a bawdy house, the evidence
given by the witnesses on the hearing of the charge against the
keeper may, with the consent of the accused, or her counsel, be
read as evidence in the case. Ihid.
See also R. v. Marcinko, 19 C. C. C. 388, and R. V. Jackson,
22 C. C. C. 215, also R. v. Johnson, 23 C. C. C. 136, as to what
evidence may be sufficient to warrant a finding of guilty in such a
case.
Where a person was convicted before a magistrate of being an
inmate of a bawdy house and was fined $90 and $6.25 costs, or in
default six months' imprisonment, the conviction omitted the words
" being charged before me." On a motion to quash the conviction,
it was held that it was made under Part LV. (now XVI.) as upon
a summary trial, and the motion was dismissed. R. v. Ames,
OTHEB OASES WHERE JURISDICTION ABSOLUTE. 397
(1903) 10 C. C. C. 52. By the amendment of 1909, supra, the
fine is now limited to $50, under sec. 238, for the offence of being
an inmate, &c.
Sub-section (2) of sec. 774 provides that the provisions of this
Part do not affect any absolute summary jurisdiction given to
justices by any other part of this Act.
This means that the fact of a magistrate having jurisdiction
to try the offences enumerated in the Part does not interfere with
his trying the same offences by way of summary conviction under
Part XV. if such offences can be so tried.
For instance, he has absolute jurisdiction under Part XV. to
try the offences enumerated in sec. 238, vagrancy, or a common
assault, sec. 291, and this jurisdiction is not interfered with by
reason of his having jurisdiction to try the offences enumerated in
those sections of the Code under the powers given him in this Part.
Seafaring Persons.
775. The jurisdiction of the magistrate is absolute in the case of
any person who, being a seafaring person and only transiently in Canada,
and having no permanent domicile therein, is charged, either within the city
of Quebec as limited for the purpose of the police ordinance, or within the
city of Montreal as so limited, or in any other seaport city or town in
Canada where there is such magistrate, with the commission therein of any
of the offences in this Part previously mentioned, and also in the case of
any other person charged with any such offence on the complaint of any
such seafaring person whose testimony is essential to the proof of the
offence.
2. Such jurisdiction does not depend on the consent of any such
person to be tried by the magistrate, nor shall such person be asked whether
he consents to be so tried.
Absolute Jurisdiction in Certain Provinces.
776. The jurisdiction of the magistrate in the provinces of British
Columbia, Prince Edward Island, Saskatchewan and Alberta, and in the
Northwest Territories and Yukon Territory, under this Part, is absolute
without the consent of the party charged, except in cases coming within
the provisions of section seven hundred and seventy-seven, and except
in cases under sections seven hundred and eighty-two and seven hundred
and eighty-three, where the person charged is not a person who under
section seven hundred and ^eventy-five, can be tried summarily without his
consent. ,
The exceptions to the absolute jurisdiction given by this section
are as follows : — •
Section 777. The cases which come within the provisions of
sec. 777 are all offences for which a person may be tried at a
Court of General Sessions of the Peace.
398 OTHER CASES WHEEE JUEISDICTION ABSOLUTE.
The only ofEences that cannot be tried at a Court of General
Sessions of the Peace are those enumerated in sec. 583 of the
Code, which see, post.
Cases coming under sees. 782 and ^83 are theft, false pre-
tences, receiving stolen property, where the value of the property
stolen, obtained or received exceeds ten dollars.
Section 783 provides as to consent and trial of offences referred
to in section 782. And the exceptions under these sections, 782,
and 783, only apply where the person charged is not a person who,
under sec. 775, can be tried summarily without his consent, viz.,
a seafaring person or a person charged by him.
The provisions of this section, therefore, mean that the juris-
diction of magistrates in the provinces mentioned is absolute with-
out the consent of the party charged, to hear and determine any
charges for the offences enumerated in sec. 773. In all the other
provinces the magistrates have jurisdiction, " subject to the pro-
visions of this part," i.e., they must first have the consent of the
party charged to try the offences enumerated in sec. 773, save as
provided by sec. 774, relating to disorderly houses. Why this
extended jurisdiction is given to magistrates in these several pro-
vinces, to the exclusion of the same class of magistrates in other
provinces, one is at a loss to understand. There are unorganized
territories in all the other provinces as well as in the provinces
mentioned, so that cannot be the reason.
Where two men were convicted by two justices of the peace in
British JColumbia for stealing a coat of the value of less than ten
dollars, it was held that the defendants had a right of appeal from
the conviction, notwithstanding the fact that under sec. 784 (3)
(now sec. 776) the jurisdiction of the justices was absolute in
B. C. in cases of this kind. R. v. Wirth, 1 C. C. C. 231. And see
R. V. Jaclc, '{No. 2), (1902) 5 C. C. C. 304.
Magistrates given Jurisdiction of General Sessions or the
Peace.
777. " If any person is charged in the province of Ontario before a
police magistrate or before a stipendiary magistrate in any county, district
or provisional county in such province, with having committed any offence
for which he may be tried at a Court of General Sessions of the Peace, or
if any person is committed to a gaol in the county, district or provisional
county, under the warrant of any justice, for trial on a charge of being
guilty of any such offence, such person may, with his own consent, be tried
before such magistrate, and may, if found guilty, be sentenced by the
magistrate to the same punishment as he would have been liable to if he
had been tried before the Court of General Sessions of the Peace.
"2. This section shall apply also to district magistrates and Judges
of the sessions in the province of Quebec, and to police and stipendiary
CEETAIN MAGISTRATES HAVE EXTENDED JURISDICTION. 399
magistrates of cities and incorporated towns having a population of not
less than 2,500 according to the last decennial or other census taken under
the authority of an Act of the Parliament of Canada, and to the recorder
of any such city or town if he exercises judicial functions, and to Judges
of the Territorial Court and police magistrates in the Yukon Territory.
" 3. Sections seven hundred and eighty and seven hundred and eighty-
one do not extend or apply to cases tried under this section.
•' 4. Where an offence charged is punishable with imprisonment for a
period exceeding five years, the Attorney-General may require that the
charge be tried by a jury, and may so require notwithstanding that the
person charged has consented to be tried by a magistrate under this section,
and thereupon the magistrate shall have no jurisdiction to try or sentence
such person under this section.
" 5. The jurisdiction of the magistrate under this section in cities
having a population of not less than 25,000 according to the last decennial
or other census taken under the authority of an Act of the Parliament of
Canada, is absolute, and does not depend upon the consent of the accused,
in the case of any person charged with theft, or with obtaining property
by false pretences, or with unlawfully receiving stolen property where
the value of the property alleged to have been stolen, obtained or received
does not, in the judgment of the magistrate, exceed ten dollars."
The above is sec. 777 as the same was amended and added to in
1909. 8-9 Edw. VII, c. 9, s. 2.
In Ontario police and stipendiary magistrates in any county,
district or provisional county are given jurisdiction under this
section.
In Quebec district magistrates and Judges of sessions, in addi-
tion to police and stipendiary magistrates of cities and incorpor-
ated towns having a population of not less than 2,500, and the re-
corder of any such city or town, have jurisdiction under this sec-
tion.
In all the other provinces the jurisdiction is limited to police
and stipendiar}' magistrates of cities and incorporated towns hav-
ing a population of not less than 2,500, and the recorder of any
such city or town if he exercises judicial functions.
The Judges of the Territorial Courts and police magistrates in
the Yukon Territory have likewise jurisdiction under this section.
The reason a more numerous class of magistrates in Ontario
are clothed with this extended jurisdiction than in the other pro-
vinces is that the class of magistrates mentioned had enjoyed this
jurisdiction in Ontario long prior to the passing of the Criminal
Code.
The first sub-section of sec. 777 is practically sec. 785 of the
original Code of 1892, and this section, 785, was a re-enactment of
sec. 7 of ch. 176 of the Revised Statutes of Canada (1887).
Section 785 of the original Oode was amended in 1900 by
enacting sub-see. 2 of the revised Code, viz., applying this section
''to police and stipendiary magistrates of cities and incorporated
400 APPLICATION OF SECTIONS 780 AND 781.
towns in every other part of Canada and to recorders where they
exercise judicial functions."
This was wise and beneJBcial legislation and much to be com-
mended. As amended in 1909 the provision is narrowed by limit-
ing the class of magistrates to those " in cities and incorporated
towns having a population of not less than 2,500." Magistrates
in cities and towns of a less population, and who come within sec.
771, nevertheless can exercise their functions on the hearing and
determination of the offences mentioned and set out in sec. 773.
The expression " cities and incorporated towns, etc.," in sub-
section 2 of sec. 777 above, refer to such cities and towns
throughout Canada, and not merely in the Province of Quebec.
R. V. Rahamat Ali, 16 C. C. C. 193, and R. v. Spates, 22 C. C. C.
269.
It is hopefully suggested that if this section, 777, is agaia
amended, it will be re-cast and simplified, and be constructed to
meet the present conditions of the Dominion. There is surely no
reason for any reference to the jurisdiction of " the Court of
General Sessions of the Peace." This Court does not exist in any
of the provinces outside of Ontario and Quebec. Why not state
specifically that certain magistrates, enumerating them, shall, with
the consent of the accused, or person charged, have jurisdiction to
hear and determine all offences save and except those mentioned
and set out in sec. 583 ?
Sub-section 3 of sec, 777 provides that sees. 780 and 781 do not
extend or apply to cases tried under this section. Section 780 pre-
scribes the punishment on conviction for offences under para-
graphs (a) and (b) of sec. 773. And sec. 781 prescribes the pun-
ishment on conviction for offences summarily tried under para-
graphs (c), (d), (e), (f) and (g) of sec. 773.
The meaning, thef^^ge, of sub-sec. 3 of sec. 777 is, that a
magistrate hearing and determining a case only under the provi-
sions and jurisdiction conferred by sec. 777, upon conviction, is
not restricted to the punishment fixed by sees. 780 and 781, but
may award the same and like penalties as if the person convicted
had been found guilty upon an indictment, unless, as before pointe-T
out, the charge is one coming under some one of the paragraphs
orsec. yyg i^ee i^. v. ArchllaU, (lg^5) 4 (J. 0. C. 159. TO
see the well considereci and comprehensive judgmeni; of Graham,
. KJ., in K. V. Mcleod, [VM) 12 U. C. C. 73.
Attention is directed to the expression " police magistrates of
cities and incorporated towns." It is not enough that a police
JUKISDICTION IN CITIES OF 25,000. 401
magistrate's appointment should be of or for the whole of a Pro-
vince, but he should be specially appointed to be police magis-
trate of the city or town, naming it, in order that he may have
the extensive jurisdiction conferred by this section, though he
may also have jurisdiction over the whole Province conferred upon
him. See E. v. Nar Singh, 45 C. L. J. 296, and R. v. Benner, 8
C. €. C. 398, and R. v. AUxand&r, 21 C. C. C. 473.
Attorney-General may Intervene.
The provisions of sub-sees. 4 and 5 are new, being added in
1909.
By the provisions of sub-sec. 4, where an offence charged is
punishable with imprisonment exceeding five years, the Attorney-
General may require that the charge be tried by a jury, notwith-
standing that the person charged has consented to be tried by the
magistrate under sec. 777.
When, therefore, the Attorney-General signifies his wishes the
jurisdiction of the magistrate is ousted, and he can only proceed
as upon a preliminary inquiry.
Absolute Jurisdiction in Cities of 25,000.
By sub-sec. 5 the jurisdiction exercised under sec. 777 in cities
of not less than 25,000 population is absolute and does not depend
upon the consent of the accused in charges of theft, or obtaining
property by false pretences, or receiving stolen property, where the
value of the property alleged to have been stolen, obtained or re-
ceived does not, in the judgment of the magistrate, exceed ten
dollars.
This sub-section obviates the necessity of putting the accused
to his election, and is a saving of both time and expense in dealing
with trifling offences. The only comment one wishes to make is,
that the value should have been raised far above ten dollars.
In R. V. Conlin, 1 C. C, C. 41, Eobertson, J., expressly held
that theft from the person under sec. 379 does not come under
paragraph (a) or (b) of sec. 783 (now 773), but comes under
sec 777, being a much more serious offence, though Boyd, C, ex-
pnessed a contrary opinion. It is submitted that the opinion of
EoBEHiiTSON, J., is correct, and that no magistrate could try such a
charge without the consent of the accused, no matter how small
the amount stolen. Sea^ .v. Bonvn, 20 C. C. C. 180.
C.C.P.— 2G
402 JUEISDIOTION OF GENERAL OR QUARTER SESSIONS.
A person charged with theft may be convicted of an attempt
to commit the theft. See R. v. Morgan, (1901) 5 C. C. C. 63.
Jurisdiction of General and Quarter Sessions.
In order that the magistrates mentioned in sec. 777 may pro-
perly know what class of crimes are exempted from their jurisdic-
tion, attention is called to the provisions of sees. 582 and 583 of
the Code. From a perusal of these sections it will be seen that
these magistrates have the like power with Courts of General or
Quarter Sessions of the Peace to try any indictable offences except
those mentioned and set out in sec. 583.
These sections are as follows:
582. Every Court of general or quarter sessions of the peace when
presided over by a superior Court Judge, or a county, or district Court
Judge, or in the cities of Montreal and Quebec by a recorder or Judge of
the sessions of the peace, and in the province of New Brunswick every
County Court Judge, has power to try any indictable offence except as here-
inafter provided.
583. No Court mentioned in the last preceding section has power to
try any offence under sections, —
(o) seventy-four, treason; seventy-six, accessories after the fact to
treason ; seventy-seven, seventy-eight, and seventy-nine, treasonable
offences ; eighty, assaults on the King ; eighty-one. inciting to mutiny ;
eighty-five, unlawfully obtaining and communicating oflScial informa-
tion ; eighty-six, communicating information acquired in office ; or,
(6) one hundred and twenty-nine, administering, taking or procuring
the taking of oaths to commit certain crimes; one hundred and
thirty, administering, taking or procuring the taking of other un-
lawful oaths ; one hundred and thirty-four, seditious offences ; one
hundred and thirty-five, libels on foreign sovereigns ; one hundred
and thirty-six, spreading false news : or,
(c) one hundred and thirty-seven to one hundred and forty inclusive,
piracy ; or,
(d) one hundred and fifty-six, judicial, etc., corruption; one hundred
and fifty-seven, corruption of officers employed in prosecuting
offenders ; one hundred and fifty-eight, frauds upon the Government ;
one hundred and sixty, breach of trust by a public officer; one
hundred and sixty-one, municipal corruption ; one hundred and sixty-
two (o), selling offices; or.
(e) two hundred and sixty-three, murder; two hundred and sixty-
four, attempt to murder; two hundred and sixty-five, threat to
murder ; two hundred and sixty-six. conspiracy to murder ; two
hundred and sixty-seven, accessory after the fact to murder; two
hundred and sixty-eight, manslaughter ; or.
(/) two hundred and ninety-nine, rape ; three hundred, attempt to
commit rape ; or,
(g) three hundred and seventeen to three hundred and thirty-four.
defamatory libel ; or.
(h) four hundred and ninety-eight, combination in restraint of trade;
or,
(t) conspiring or attempting to commit, or being accessory after the
fact to, any of the offences in this section before mentioned ; or.
(/) any indictment for bribery or undue influence, personation or
other corrupt practice under the Dominion Elections Act.
JURISDICTION OF MAGISTRATES UNDER SECTION 777. 403
In Be Vancino (No. 2), (1904) 8 C. C. C. 228, 34 S. C. E. 621,
it was held by the Supreme Court of Canada that although there
are no " Courts of General Sessions " except in Ontario, the 1900
amendment of the Code, sec. 785 (now 777), extending its pro-
visions to cities and towns of other provinces is not therefore in-
operative, hut gives to a magistrate in any other province the jur-
isdiction given for Ontario by sec. 785 (now 777).
" Where once the Parliament of Canada has given jurisdiction
to a provincial Court, whether the superior, or inferior, or to a
judicial oflBcer, to perform judicial functions in the adjudicating
of matters over which the Parliament of Canada has exclusive
jurisdiction, no provincial legislation, in our opinion, is necessary
in order to enable effect to be given to such parliamentary enact-
ment." Ibid. Sedgewick^ J., at p. 233.
Where a person has consented to be tried summarily by a
police magistrate for an offence triable by him under sec. 777, and
has been acquitted, the magistrate has no right to bind the prose-
cutor over to prefer an indictment as provided by sec. 688 of the
Code, which relaltes to preliminary inquiry. R. v. Burns, (1901) 4
C. C. C. 330.
Section 777 is wide enough to enable a police magistrate pro
ceeding thereunder to find the accused, who is being summarily
tried with his own consent, guilty of whatever offence he might
have been convicted of, and amenable to whatever punishment he j 1/
would have been liable to if he had been tried at the general I
sessions. E. v. Morgan (No. 2), (1901) 5 C. C. C. 272. ^
But, as far as the quantum, of punishment is concerned, this ,
would not apply to any of the offences enumerated in sec. 773.
A police magistrate of a city or town has power to impose the
same punishment for common assault as could be imposed upon a
person convicted on indictment. B. v. Bidehaugh, (1903) 7 C. C.
C. 340.
Common assault is not one of the offences mentioned in sec.
773, but keeping a disorderly house is. See B. v. Shing, 17 C. C.
C. 463, supra, and notes on sec. 774, supra.
Where a person is accused of inflicting grievous bodily harm,^ j
on a summary trial, the magistrate may convict him of common
assault only, the same as if he had been tried by a jury upon an I
indictment. And the magistrate may inflict the maximum punish- /
ment for common assault prescribed by sec. 291 of the Code, viz., /
one year's imprisonment or a fine of $100. B. v. Coolen, (1903) 7
-/-
^
404 TRIAL AND SENTENCE BY MAGISTRATES.
C. C. C. 522; and see R.y. Frank Coolen, (1904) 8 C. C. C. 157;
R. V. Cameron, (1901) 4 C. C. C. 385, and E. v. Hawes, (1902)
6 0. C. C. 238.
Where the accused consents to summary trial before a city
magistrate upon a charge of theft and the value of the goods stolen
exceeds ten dollars, and the accused pleads "not guilty/' the
magistrate is not bound to remand him under sec. 790 (now 783),
but has jurisdiction under sec. 785 (now 777) to try and determine
the charge and impose the same punishment as might be imposed
by a Court of General Sessions in Ontario. R. v. Bowers ,{1^0. 2),
(1903) 6 C.C. C, 264.
Where, in a simimary trial by consent before a city magistrate
for common assault, the accused had been sentenced to three
months' imprisonment, without hard labor being mentioned in the
minute of adjudication, and the conviction included hard labor,
as did also the warrant of commitmen!t<, the prisoner was discharged
on habeas corpus on the ground of the variance in the minute of
adjudication and the conviction and commitment. Ex parte Car-
michael, (1903) 8 C. C. C. 19.
The Police Oourt of a city exercising the powers conferred
upon it by sec. 785 (now 777) of the Code is not a Court of
JRecord within the meaning of the Ontario Habeas Corpus Act. R.
V. Gibson, (1S98) 2 C. C. C. 302, and see R. v. St. Clair, (1900)
3 C. C. C. 551.
The trial of an offender under sec. 777 must be subject to the
same rules of law as a trial at the General Sessions of the Peace.
And the same results follow on the conviction of the accused as
" he may be sentenced by the magistrate to the same punishment
as he would be liable to if he had been tried before the Court of
General Sessions of the Peace." So, when tried by a magistrate
" on a charge of being guilty of any such offence," it must mean
that the magistrate may find the accused guilty of '^ any such
offence " as is included in the charge. McMahon^ J., at p. 388,
in R. V. Cameron, (1901) 4 C. C. C. 385.
A prisoner's right to hdbeas'corpus in Manitoba depends on the
Habeas Corpus Act, 31 ch. II, c. 2, s. 2, and the writ cannot be
taken out on behalf of a prisoner under sentence on a conviction
by a police magistrate acting under sec. 777 of the Code, unless an
absolute want of jurisdiction is shewn. R. v. Sproule, (1886) 12
S. C. R. 141, followed. R. v. McEwan, (1908) 17 M. P. 470,
7 W. L. P. 365, 13 C. C. C. 346. Per contra, see R. v. St. Clair,
PUNISHMENTS IMPOSED BY CITY MAGISTRATES. 405
supra; R. v. Pepper, (1909) 15 C. C. C. 314, and R. v. Johnston,
19 C. G. C. 203, 20 C. C. C. 8.
Before 1895, two justices of the peace in the North- West Terri-
tories had jurisdiction to try offences under paragraphs (a) and
(f ) of sec. 783 (now 773) of the Code, and there was no appeal
from their decision. The extension in 1895 of this jurisdiction to
two justices of the peace in any province, subject to appeal where
the trial was had before them by virtue of the new enabling clause,
did not extend the right of appeal to the North-West Territories.
The Alberta Act, since it has continued the law theretofore in
force, made no change in this respect. R. v. Pisoni and R. v.
Taylor, 6 Terr. L. R. 238, 4 W. L. R. 527.
Where a person is charged with perjury alleged to have been
committed in a prior trial before the same magistrate, the magis-
trate should not in the trial for perjury consider his recollection
of the demeanour of the accused and other witnesses at the former
trial. His duty was to be guided by the evidence before him and
by that alone. R. v. Legros, (1908) 14 C. C. C. 162.
Upon a conviction for perjury, there is no authority in the
Code to impose a fiiie in lieu of imprisonment. By sec. 174 of
the Code, the offence of perjury is punishable by imprisonment for
a term not exceeding fourteen years. Ihid. By sub-sec. 2 of sec.
1035 of the Code, it is provided that any person convicted of an
indictable offence punishable with imprisonment for more than
five. years may be fined in addition, but not in lieu of any punish-
ment therein ordered.
By the same section on conviction of indictable offences punish-
able with imprisonment for five years or less, the accused may be
fined in addition to, or in lieu of, any punishment therein directed.
A police magistrate or stipendiary magistrate may summarily
try a prisoner with his consent by virtue of sees. 771 (a) and 777
of the Cbde for an offence committed outside his territorial juris-
diction, but in the same province. " I construe sees. 554 (now
653), 557 (now 665-6), and 785 (now 777), taken together to
mean that, when an offence is committed vnthin the limits of a
province, any presence, however transitory, of the accused in any
part of that province will justify the exercise of as full and com-
plete jurisdiction as if the offence was committed where the
offender is apprehended, leaving to the magistrate a discretionaiy
power to send the prisoner for further inquiry, or for trial before
the justice having jurisdiction over the locus where the offence was
406 PROCEEDINGS ON ARRAIGNMENT.
committed." Fitzpatrick, C.J., at p. 280, in Re Seeley, (1908)
14 C. C, C. 270, 41 S. C. R. 5 ; and see B. v. McEwen, supra.
Where a magistrate holding a summary trial convicted the
accused of an offence punishable under a statute which had Been
repealed, the magistrate not knowing of the repeal, he may after-
wards reserve a case for the Court of Appeal under sec. 1014 of
the Oode, and the conviction will be quashed. R. v. Corrigan,
(1909) 15 C. C. C. 310.
It appears to me that, when the representative of the Ctown, in
the exercise of his judgment and discretion, declines to support a
■conviction on its face open to such an objection aa exists in the
present case, this Court ought not to be required to search for
reasons to support it. Osler^ J. A., ibid, at p. 311, and see
Mitchell V. Brown, (1858) 1 E. & E. 2%'i.
The Court will take judicial notice of census returns taken
under a statute of Canada and published by the authority of
Parliament. Therefore, the Court will take judicial notice of such
a notorious fact as that the population of the City of Vancouver
was at the last Dominion census greater than 2,500. . . . The
doctrine of judicial notice extends to all departments of the law,
and is not confined to that of evidence. Gregory, J., at p. 194,
in B. V. Bahamat AH (No. 1), (1910) 16 C. C. C. 193.
The Court will also take judicial notice of proclamations with-
out any formal request for it. Ex p. Edwards, 16 C. C. C. 522.
Proceeding on Arraignment.
778. Whenever the magistrate, before whom any person is charged as
aforesaid, proposes to dispose of the case summarily under the provisions
of this Part, such magistrate, after ascertaining the nature and extent of
the charge, but before the formal examination of the witnesses for the
prosecution, and before calling on the person charged for any statement
which he wishes to make, shall state to soch person the substance of the
charge against him.
2. If the charge Is not one that can be tried summarily without the
consent of the accused, the magistrate shall state to him, —
(o) that he is charged with the offence, describing it;
(6) that he has the option to be forthwith tried by the magistrate
without the Intervention of a jury, or to remain in custody or
under ball, as the Court decides, to be tried in the ordinary way by
the Court having criminal jurisdiction.
3. If the person charged consents to the charge being summarily tried
and determined as aforesaid, or if the power of the magistrate to try it
does not depend on the consent of the accused, the magistrate shall reduce
the charge to writing and read the same to such person, and shall then
ask him whether he is guilty or not of such charge.
4. If the person charged confesses the charge, the magistrate shall
then proceed to pass such sentence upon him as by law may be passed In
respect to such offence, subject to the provisions of this Act ; but, if the
OFFERING THE ACCUSED HIS ELECTION. 407
person charged says that he is not guilty, the magistrate shall then examine
the witnesses for the prosecution, and, when the examination has be.en
completed, the magistrate shall inquire of the person charged whether he
has any defence to make to such charge, and, if he states that he has a
defence, the magistrate shall hear such defence, and shall then proceed to
dispose of the case summarily.
It is to be borne in mind that it is only where the magi^|j^i^
'^ proposes to dispose of the case summarily under the provi^fis
of this Part " that he is required to put the accused to his elecnon.
If the magistrate does not propose to dispose of t^e case sum-
marily, then he will proceed with [the hearing as upon a prelimih-
ary inquiry under Part XIV. of the Code.
The magistrate ascertains the nature and extent of the charge
from the reading of the information or complaint. The magis-
trate is to state to "such person the substance of the charge
against him." This is usually done by reading the information
to the accused.
Election op the Accused.
If the charge is not one that can be tried summarily without
the consent of the accused, the magistrate should state to him:
(a) That he is charged with the offence, describing it. This
can be done by reading the charge from the information.
(b) That he has the option to be forthwith tried by the magis-
trate without the intervention of a jury, or to remain in custody
or under bail, as the Court decides, to be tried in the ordinary way
by the Court having criminal jurisdiction.
It is only where the charge is not one that can be tried sum-
marily without the consent of the accused that the magistrate is
required to follow this procedure. If, for instance, the charge is
one for keeping a disorderly house under sec. 228 (sec. 773 (f)),
it is not necessary for the magistrate to proceed as indicated in
this section, since under sec. 774 he has absolute jurisdiction in
respect to this class of offence. And the procedure is not required
to be followed in dealing with offences under sees. 775 and 776
where the magistrates named have absolute jurisdiction, as also
magistrates having absolute jurisdiction by virtue of sub-sec. 5 of
sec. 777, added by the amendment of 1909.
Sub-section 2 of sec. 778 was amended in 1909, and it is
subject for comment as to whether paragraph (b) is any improve-
ment upon the phraseology of the old sub-section. The wording
of paragraph (b) now is identical with paragraph (b) of sec. 827
408 TEEMS OF OFFEE OF ELECTION.
of the Code, on an arraignment before a County Court Judge, or
prosecuting officer, under Part XVIII, of the Code relating to
"speedy trials" before Comity Court or District Judges.
Presumably the change was made in consequence of the fact
that the question as ito whether or not magistrates had strictly
complied with sub-sec. 2 of sec. 778, as it stood before amendment
in 1909, had been frequently the subject of judicial inquiry and
decisions on appeal and habeas corpus proceedings.
It is very questionable whether any improvement has been
made and whether magistrates are not more likely to err in
a strict compliance with paragraph (b) of sec. 778 than they were
before the amendment.
As the paragraph now reads, it is very confusing to the ordin-
ary run of prisoners. They generally understand that they have
the right to be tried summarily by the magistrate, or by a jury,
but they do not seem to comprehend the meaning of the conclud-
ing words " to be tried in the ordinary way by the Court having
jurisdiction,"
Speaking from experienice, the author can say that, in nine cases
out of ten, it was found necessary to enter into an explanation of
what these latter words mean in order to convey to the accused
their true significance.
Since all that is intended is to state to the accused the fact
that he can either be tried by the magistrate summarily and have
his case disposed of quickly, or he can wait for his trial before a
jur}', why not convey this intelligence to the prisoner in concise
and apt language readily to be understood by the least intelligent?
If it is intended to let the accused know that he will also have
the opportunity of having a speedy trial before a County Court,
or District Judge, he can be told that also in plain language.
The question, as put by magistrates under the Summary Juris-
diotion Act (1879), of England, is simplicity itself, being as fol-
lows : " Do you desire to be tried by a jury, or do you consent to
the case being dealt with summarily?"
An accused should be informed of his right to be tried by a
jury when the magistrate's jurisdiction to try him summarily is
not absolute. The fact that the accused is aware that he has the
right to be tried by a jury, and the further tact that the magistrate
is aware that the prisoner is going to plead guilt}', will not give
the magistrate jurisdiction to convict him if he has not been in-
formed of his right. Where a statute requires something to be
AMENDMENT OF CHARGE AFTER CONSENT. 409
done in order to give a magistrate jurisdiction, a strict compliance
with such direction should he shewn on the face of the proceed-
ings. B. V. Cockshutt, 19 Cox 3, [1898] 1 Q. B. 683; B. v.
Hogarth, 24 0. R. 60. And see Weatherbe, J., at p. 466, in B.
V. Shepherd, Jd C. C. C. 463.
JtL B. V. Walsh <& Lamont, 8 C. C. C. 101, the magistrate asked
the prisoner : " How do you wish to be tried, before me, or before
a jury?" Counsel for the prisoners, instructed by them at the
time, answered : " They elect to be tried now before your worship."
The magistrate having omitted to inform the accused of the Court
at which the charge could probably soonest be tried by a jury, or
to give them any/information of that nature or to that effect, it
was held that there had not been a strict compliance with the re-
quirements of sec. 786 (now 778), and that it was imperative that
the magistrate should state to the accused the Court at which the
case can probably be soonest tried.
It was also held in that case that, upon a sumraary trial under
Part LV, (now XVI.) where the consent of the accused is essential
to the jurisdiction, the charge upon which the accused has so con-
sented to be tried cannot be enlarged or extended by amendment
without , giving him the right of re-election upon such amended
charge. " . , r. . .
If, after the charge has been read to the accused and he has
consented to be tried summarily, it is found necessary to amend
the information or charge, the magistrate will have to commence
the proceedings de novo, that is, he shall state to the accused that
h'e is charged WltR aTlOthfii- or dilterent ottence, describing it, and
repeat the question, paragraph (b), "that he has the option, etc.
If the accused consents to tue amended charge being summarily
tried, tbe magistrate must read the amended charge to him, and,
when he has pleaded to the same, the magistrate may proceed,
otherwise his jurisdiction is gone. " A magistrate, after he has
entered upon the trial of a charge, has no power to enlarge or ex-
tend it by amendment without the assent of the accused to the
summary trial of the charge as amended, and then to deprive him
of the right to elect to have the amended, or the new additional,
charge tried by a jury." Osler, J. A., at p. 106, B. v. Walsh, supra.
A consent to a summary trial under Part LV. (now XVI) is
invalid unless the accused has been specifically informed by the
magistrate of his right to a trial by jury. B. v. Conway, (1902) 7
C. C. C. 129.
410 RECORD OF CONSENT TO SUMMARY TRIAL.
The question put to the accused under sub-sec. 2 of sec. 778
may be asked through the magistrate's clerk. R. v. Ridehaugh,
(1903) 7 C. C. C. 340.
"The magistrate asked him whether 'he consented that the
charge should be tried by him, or should be sent for trial by jury at
the next ensuing session of the Supreme Court of Criminal Juris-
diction of Halifax.* This is all that the statute requires. There
is nothing in the statute that I can find requiring the date of the
sitting to be mentioned. No decision binding on me was cited
to the effect that the date must be named, and I am not aware of
any such decision. If the date is fixed by law the prisoner in
theory knows it as well as the magistrate. If it is not fixed by law
I see no good reason why the magistrate should be required to
know it." Russell, J., at p. 356, in R. v. Reid, (1907) 12 C.
C. C. 352.
It is imperatively essential that every word of paragtaph (b)
of sub-sec. 2 of sec. 778 shall be read to the accused before his
election. R. v. Howell, (1910) 16 C. C. C. 178, 19 M. R. 317;
R. V. Harris, 18 C. C. C. 392; R. v. Davis, 22 C. C. C. 34; R. v.
Fmrst, 22 C. C. C. 183.
In this last case, although the conviction was quashed on habeas
corpus, because of the failure of the magistrate to carry out the
directions of the sub-section, the prisoner was remanded into cus-
tody to be again taken before the magistrate when his election
might be taken in proper form.
It was held by Ritchie, J., in R. v. Burtress, 3 C. C. C. 536,
that a conviction is not invalid merely because it omits to state
that the accused consented to be tried summarily, if in fact the
consent was given ; but this decision should not be relied on. See
fbllovfdng paragraphs.
In R. V. Crooks, 19 C. C. C. 150, the conviction was quashed
because the magistrate's record of the election shewed only that
the accused "consented to jurisdiction," although the Judge was
satisfied by affidavits read that the offer of the election had been
regularly made. He held, however, that the record itself must
shew jurisdiction.
The prisoner was in this case, as in R. v. Howell, and R. v.
FiLcrst, supra, remanded for proceedings de novo.
In R. V. Mali, 19 C. C. C. 184, 188, and R. v. Barnes, 19 C. C.
C. 465, it was held sufficient for the conviction to recite that the
accused " consented to be tried summarily."
eeducing the charge to writing. 411
Charge Eeduced to Writing.
By sub-sec. 3 of sec. 778, if the person charged consents ttio the
charge being summarily tried and determined, or if the power of
the magistrate to try it does not depend on the consent of the ac-
cused, the magistrate shall reduce the charge to writing and read
the same to such person, and shall then ask him if he is guilty, or
not, of such charge.
This seems to be an absurd duplication of work.
In accordance with sub-sees. 1 and 2 of 778 the person charged
has already had stated to him the substance of the charge against
him, and why should this formality have to be again gone through
with?
The information, or complaint, is the foundation of all crimi-
nal charges and the basis of all subsequent proceedings. In the
information, or complaint, the charge has been reduced to writing ;
why then should the magistrate have to go through the same per-
formance over again ? See comments on this subject in chapter V.,
page 116.
In R. V. Shepherd, (1902) 6 C. C. C. 463, Townshend, J.,
held that it is not necessary for the magistrate to again " reduce
the charge to writing," if that had already been done before the
consent was given by the accused. And that " there was no objec-
tion to the magistrate reading to the accused what he had already
written out, viz., the information."
When the charge is read to the accused in the terms of the
written information and his plea taken thereto, any objection to
the order in which the proceedings were taken is waived by the
accused. R. v. McLeod, (1906) 12 C. C. C. 73.
In his judgment at pages 302-303, Anglin, J., in R. v. Gill,
(1908) 14 C. C. C. 294, amongst other things, says: "Here the
main purpose of the information is not to give the accused know-
ledge of the charge against him and which he is called upon to
meet; it is rather to inform the magistrate in the first instance
upon what charge a warrant or summons is asked against the
accused."
" The magistrate does not arraign the accused upon the in-
formation. He is expressly required, if he decides to proceed upon
the election of the defendant, to try him summarily for an indict-
able offence, to formulate the charge in writing, and to read it
when so formulated to the accused, and it is to tlie charge so
412 WRITTENl CHARGE READ ON ARRAIGNMENT.
formulated and read that the accused must be asked to plead.
The charge so formulated with the plea thereto of the accused
becomes the record upon which the magistrate proceeds to try him.
' It corresponds to an indictment framed by a jury, or per-
haps still more nearly to the record to be drawn up by the Crown
prosecutor under sec. 827 of the Code, where an accused person
elects for speedy trial without a jury."
His Lordship goes on to say thalt, while in summary conviction
proceedings the information and conviction constitute the record,
in proceedings under sec. 778 the infonnation is entirely super-
seded by the formulated charge prepared by the magistrate, and
this document, with the plea of the accused and the magistrate's
adjudication, together with the consequent conviction, form the
record.
"In my view, therefore, the omissions from the information
complained of in the present instance do not affect the validity of
the conviction, which follows precisely in its terms the charge as
formulated by the magistrate."
There was in that case, returned with the information and
conviction, a document called by the magistrate a "minute of
adjudication" prepared by him separately from the informa-
tion, and which the learned Judge held to be a suflBcient com-
pliance with the direction of the statute that tiie magistrate
shoTrfd " reduce the charge to writing," but the weight of author-
it)'-is-in favor of the proposition that the original information, if
correctly drawn, is sufficient. See R. v. Shepherd, supra, and R. v.
Graf, post. . . .
In R. V. Graf, (1909) 15 C.'^fe C.' 193, Eeddell, J., says, at
p. 198 : "I see no reason why the magistrate may not have the
charge prepared in advance in anticipation of the prisoner's ex-
pected or possible choice, and I think the fact that the charge is
contained in a document in the form of an information is wholly
immaterial."
One can understand the necessity for the magistrate " reducing
the charge to writing " where the accused has been committed for
trial, or remanded by a justice under sec. 796 of the Code. But,
where a person is brought before a magistrate upon a charge con-
tained in an information which may have been taken and sworn
before him. and upon whidi the warrant was issued for the ap-
prehension of the accused, it does strike one as anomalous that the
same magistrate should have to go through the empty form of
again reducing the charge to writing.
MAGISTRATE MAY DECLINE TO ADJUDICATE. 413
Why is it necessary to do more than read the information to
the accused ? That conveys to him " the substance " of the charge,
it " describes " the oif ence with which he is charged, and it is not
only reduced to writing, but it has been signed by the informant
and sworn to by him before a justice of the peace.
If the accused has been arrested without a warrant, and at the
time he appears before the magistrate no information has been
laid, that is a different story. But as, in the great majority oE
cases, persons who are charged before city magistrates have been
arrested after an information has been laid and warrant issued
before the accused appears before the magistrate, it should not be
necessary to draw up a new "charge," it being already in the in-
formation.
It has been held that, upon a summary trial with the consent
of the accused, section 951 (then 713) applies to summary trials
as well as to trials upon indictments — also that the word " count "
as used in sec. 2 (16) and sec. 951, includes an information before
a justice for an indictable offence. In this case Coolen was charged
with assault occasioning bodily harm: he consented to be tried
summarily and was convicted of common assault only. The con-
viction was upheld. E. v. Coolen, (1904) 8 C. C. C. 157. See,
also, E. V. Mah Sam, 19 C. C. C. 1.
A magistrate is not bound to assume the responsibility of hear-
ing and determining a case summarily under this part ; the exercise
of his jurisdiction is discretionary with him. See ]^x parte John
Daok, (1895) 3 C. C. CTW '
Even if the person charged before him consents to be tried
summarily and the trial proceeds and the evidence for the prose-
cution has all been put m and heard by the magistrate, he may
still decline to proceed further with the matter.. Under the pro-
visions of sec. JM, if m any proceeding it appears to the magis-
trate that the offence is one which, owinp: to a previous conviction
qf tiie person charged, or from any circumstance, ought to be made
tj^e subject of prosecution by indictment rather than to be disposed
of summarily, the magistrate may, before the accused person has
made his defence, decide not to adjudicate summarily upon the
case. In this event, the magistrate will proceed as upon a prc-
limmaiy inquiry and commit the accused for \r\a\ unless he thinks
he ought to discharge him!
The mere fact of an accused person having a previous convic-
tion against him will not of itself prevent the magistrate from
trying the offender summarily if he wishes to do so, but it is only
414 PROCEEDINGS AT TRIAL UNDER SECTION 778.
an ingredient to be taken into consideration by the magistrate in
considering the course he thinks best to pursue.
Trial Procedure uitoer Section 778,
By sub-sec. 4 of sec. 778, if the person charged confesses the
charge, or admits his guilt, the magistrate will then proceed to
pass such sentence upon him as by law may be passed in respect
to such offence.
On the other hand, if the person charged pleads " not guilty,''
then the magistrate shall proceed to the examination of witnesses
for the prosecution, and the defence, if any.
The trial shall in every respect be conducted as a trial at nisi
prms, the only difference being that the magistrate acts as both
Judge and jury.
There is nothing in the Code providing for the evidence in
summary trials belore magistrates under this Fart being taken fh
shorthand by a stenographer, i^ecs. 683 and 68^ specifically pro-
vide lor depositions being taken down in shorthand, but these pro-
visions relate only to procedure upon prelnninary inquiry under
Pari XI V .
Nevertheless there can be no doubt that evidence in summary
trials under Part XW-. may be .taken in shorthand by a steno-
grapher. See R. V. Bond, 19 C. C. C. 96. 21 M. E. 366. The
stenographer should be first sworn, and sees. 683 and 684 may be
tak-^n as a precedent. Sec. 798 specifically provides that neither
the provisions of the Code relating to preliminary inquiries nor of
Part XV. shall apply to any proceedings under Part XVI. except
as specially provided for in sections 796 and 797, so that it is not
necessary to read over the depositions to the witnesses or have
them signed. E. v. Klein, 16 C. C. C. 503.
It is to be inferred that, when a magistrate is invested with
the authority to hear and determine indictable offences authorized
under this part of the Code, ithe trials of such cases shall
as nearly as possible be conducted in the same manner as if the
trial was had upon an indictment before a jury, and consequently
the same procedure as to taking evidence in Court may be fol-
lowed.
There is no provision in the Code relating to the examination,
or evidence of witnesses, npon trials for indictable offences, either
under this part or Part XIX. of the Code, being taken in short-
PROCEDUEE AFTEE CHARGE AMENDED — PARTICULARS. 415
liandby a stenographer; the authority for so doing is assumed as
a matter of ^oufse. " '**
If the accused elects to be tried by a jury, the procedure will
be the same as upon a preliminary inquiry, and the accused may
be committed for trial on any indictable offence disclosed by the
depositions. See R. v. Brown, [1895] 1 Q. B. 119.
An amendment to the information or charge makes the charge
a new one, and all the formalities required by sec. 778 will have
to be gone through with anew. See R. v. Bennett, 3 0. E. 64,
and supra.
A defendant was arraigned on a charge of having offered for
sale certain lottery tickets contrary to sec. 236 (b) of the Code.
He consented to the charge being tried summarily by the magis-
trate. On the day set for trial an amended charge was read to
the accused charging him with selling lottery tickets and causing
them to he sold. The accused refused to plead to the amended
charge, and would only consent to be tried summarily upon the
original charge. His objection was upheld. R. v. Woods, 19 C.
L. T. Occ. N. 18.
A warrant of commitment must shew upon its face that the
defendant consented to be tried summarily. R. v. Sears, 17 C.
L. T. Occ. K 124.
The magistrate should keep a proper record of the proceedings
and of any evidence taken. R. v. Harris, 18 C. C. C. 392.
■ — '
Particulars.
There is no doubt that, upon a summary trial under this Part,
the accused may apply for and, if the magistrate sees fit to grant
it, obtain an order for particulars as upon a trial by indictment
under sec. 859 of the Code.
The order for particulars is a matter of judicial discretion.
R. V. Stevens, (1904) 8 C. C. C. 387, and see R. v. Sinclair, (1906)
12 C. C. C. 20.
" It is only required in criminal matters that the information
should give a concise and legal description of the offence charged,
and that it should contain the same certainty as an indictment.
Of course the description of the charge must include every in-
gredient required by the statute to constitute the offence. As in
an indictment, the statement of the offence may be in the words
of the enactment describing it, or declaring the transaction charged
to be an indictable offence."
416 PARTICULARS OF CHARGE ADMISSIONS.
" The absence or the insufficiency of particulars does not vitiate
an indictment or an information; but, if it should be made to
appear that there is a reasonable necessity for more specific in-
formation, the Court or magistrate may, on the application of the
accused person, order that further particulars be given, but sucli
an order is altogether within the judicial discretion of the Judge
or magistrate." See judgment of Wurtele^ J., at pp. 338-329,
in B. V. France, (1898) 1 C. C.C. 321. And see R. v. Fulton,
(1900) 5C. C.C. 36.
An indictment should describe the offence charged with such
partieulariiry as would enable the accused to know exactly what he
has to. meet. See B. v. Beckwith, (1903) 7 C. C. C. 450.
Admissions.
An accused person on his trial for any indictable offence, or
his counsel or solicitor, may admit any fact alleged against the
accused so as to dispense with proof thereof. Sec. 97S of the Code.
This does not warrant the admission of improper evidence or
prevent the prisoner from objecting to it, though his counsel may
by oversight, or otherwise, have omitted to do so at the proper
time. R. v. Brooks, (1906) 11 C. C. C. 188; and see R. v. St.
Clair, (1900) 3 C. C. C. 551, 27 A. R 308.
If a mistake is made by counsel, that does not relieve the
Judge in a criminal case from the duty to see that proper evi-
dence only is before the jury. Osler, J., at p. 192, in R. v. Brooks,
supra, citing R. v. Gibson, (1887) 18 Q. B. D. 537; R. v. Saun-
ders, [1899] 1 Q. B, 490; R. v. Petrie, (1890) 20 0. E. 317.
The distinction between felony and misdemeanour having been
abolished by sec. 14 of the Code, the consent of counsel for the
accused, which before the Code would have applied in misde-
meanours only, is now effective in all indictable offences.
Evidence given on the trial of another person, including tho
evidence of the prisoner then called as a witness, may with the
consent of the prisoner's counsel be admitted in evidence both for
and against the prisoner. R. v. Fox, (1903) 7 C. C. C. 457.
Appeal by Eeserved Case.
By section 1013 of the Code, an appeal from the judgment of
any Court having jurisdiction in criminal cases, or of a magis-
trate proceeding under sec. 777 on th6 trial of any person for an
APPEAL BY RESERVED CASE. 417
indictable oifence, shall lie upon the application of such person
if convicted, to the Court of Appeal, in the cases hereinafter pro-
vided for and in no others. If the Judges are unanimous in
deciding the appeal, their decision shall be final. If any of the
Judges dissent from the opinion of the majority, an appeal shall
lie to the Supreme Court of Canada.
The cases " hereinafter provided for " are those set out in sec.
1014 of the Code, which is as follows : —
1014. No proceeding in error shall be taken in any criminal case.
2. The Court before which any accused person is tried may, either
during or after the trial, reserve any question of law arising either on the
trial or on any of the proceedings preliminary, subsequent, or incidental
thereto, or arising out of the direction of the Judge for the opinion of the
Court of Appeal in manner hereinafter provided.
3. Either the prosecutor or the accused may during or after the trial,
either orally or in writing, apply to the Court to reserve any such question
as aforesaid, and the Court, if it refuses so to reserve it, shall neverthe-
less take a note of such objection.
4. After a question is reserved, the trial shall proceed as in other cases.
5. If the result is a conviction, the Court may in its. discretion respite
the execution of the sentence or postpone sentence till the question reserved
has been decided, and shall in its discretion commit the person convicted
to prison or admit him to bail with one or two sufficient sureties, in such
sums as the Court thinks fit, to surrender at such time as the Court directs.
6. If the question is reserved, a case shall be stated for the opinion of
the Court of Appeal.
It was held in R. v. Pertella, 44 C. L. J. 791, decided in 1908,
that there could be no reservation of a case after verdict except on
the Court's own motion. See also Ead v. R., 40 S. C, R. 272,
decided in the same year.
However, sub-section 3 was amended in 1909 by inserting the
words " or after " in the first line thereof, so that an application
can now be made to the magistrate, or Court, both during the trial
and after it, to reserve a case.
It is to be noted that the only appeal allowed to a person con-
victed by a magistrate adjudicating under sec. 777 of the Code is
that provided for by this and the subsequent section. The appeal
is upon questions of law only, and questions of law arising either
on the trial, or on any of the proceedings preliminary, subsequent
or incidental thereto. And either the prosecutor or the accused
may apply to the Court to reserve any such question.
The application can be made either orally or in writing. If
he refuses to reserve the question, the magistrate must neverthe-
less take a note of the objection.
c.c.p. — 27
418 PROCEEDINGS AFTER CASE RESERVED.
After a question is reserved, the trial proceeds as in other cases.
That is, the fact of a question being reserved does not stop or
interrupt the trial. The trial proceeds as if no question had been
reserved, or application therefor refused. And the magistrate
may convict.
It would seem that there is no provision for any kind of appeal
from the decision of a magistrate proceeding under section 773
on the trial of any person for an indictable offence except only
when any of the offences mentioned in paragraphs (a) or (f) of
that section is tried in any province under Part XVI. before two
justices of the peace sitting together. See sec. 797 as re-enacted
in 1913.
Section 798 effectually prevents the application of the provi-
sions for appeals from summary convictions contained in Part
XV. of the Code.
In his discretion the magistrate may either respite the execu-
tion of the sentence, or he may postpone the sentence till the ques-
tion reserved has been decided.
It is also in his discretion as to whether he commits the person
convicted to prison to undergo the sentence imposed, or admits
the prisoner to bail with one or two suflScient sureties in such
sums as the magistrate thinks fit, to surrender at such time as he
directs.
If the magistrate reserves a question, or questions, he shall
state a case for the opinion of the Court of Appeal.
If the magistrate refuses to reserve the question, the party
applying may move the Court of Appeal on notice of motion, to
be given either to the accused or the prosecutor, as the case may
be. And the Court of Appeal may, upon the motion, and upon
considering such evidence, if any, as it thinks fit to receive, grant
or refuse such leave. See sec. 1015 of the Code.
Both the Crown and the accused have equal rights to appeal
on questions of law.
An application for a new trial on the ground that the verdict
was against the weight of evidence can only be made upon leave
being given by the magistrate or Court before which the trial took
place and only by a person convicted. And such leave may be
granted either during the sitting of the Court, or afterwards. If
the leave is given the application for a new trial shall be made to
the Court of Appeal. See sec. 1021 of the Code.
APPLICATION FOE LEAVE TO APPEAL. 419
If the accused is acquitted, the Crown cannot apply for a new-
trial on that ground, but only by reserved case on a question of
law.
Upon an application made for leave to appeal after the Court
has refused to reserve a case, ample notice from the prisoner's
counsel of the application for leave ought to be given to the
representative of the Crown, before the application is made to the
Court, and the notice of motion so served should set out the
grounds relied upon. U. v. Lai Ping, (1904) 8 C. C. C. 467, 11
B. C. R. 102.
On leave to appeal being granted, the Court of Appeal may
direct that the Court below shall state a case as if the question
had been reserved, on which a reserved case had been refused by
the trial Judge. E. v. Sam Chah (No. 1), 12 C. C. C. 495.
On being applied to for a reserve case the trial Judge should
not grant it upon a question, the determination of which either
way would not and did not affect his conclusions. B. v. Walkem,
(1908) 14 C. C. C. 122.
On a motion for a new trial under sec. 1021 of the Code, the
same rule should be applied as in civil cases, namely, to decide
whether the evidence was such that the jury, viewing the whole of
the evidence reasonably, could not properly find a verdict of guilty.
Irving, J., at p. 227, in R. v. Jenkins, (1908) 14 C. C. C. 221.
Leave to appeal will not be granted by an appellate Court on
the ground of the admission of irrelevant evidence if, in the opin-
ion of the Court, the reception of such evidence did not occasion
any substantial wrong or miscarriage on the trial. B. v. Gal-
laghan, (1903) 8 C. C. C. 143. See section 1019 of the Code,
post.
On an application to the Court of Appeal to direct a stated
case and for leave to appeal after refusal of the trial Judge to
reserve a case, the Court may, with the consent of counsel both
for the Crown and the prisoner, hear the appeal forthwith as if a
case had been stated. B. v. Blythe, (1909) 15 C. C. C. 225.
Leave to appeal to the Court of Appeal should only be granted
to a private prosecutor under very exceptional circumstances. JR.
V. Bums (No. 1), (1901) 4 C. C. C. 323; and see B. v. Trepanier,
(1901) 4 C. C. C. 259.
In B. V. Pettipas (No. 1), 17 C. C. C. 448, the Court granted
leave to a private prosecutor to appeal against the decision of the
trial Judge suspending sentence for five years upon conviction
420 PROCEDURE ON APPEAL BY RESERVED CASE.
for shooting with intent to do grievous bodily harm (sec. 273),
although the Crown had concurred, and ordered a case to be stated,
so that the merits might be inquired into.
If, pending the statement of a case upon a question reserved,
the Judge or magistrate before whom the trial was held dies, or
quits oflBce, or if the Judge or magistrate, having reserved a ques-
ton, refuses or neglects to state a case, the party on whose appli-
cation the question was reserved may, on notice of motion to be
given to the accused or prosecutor, as the case may be, apply to
the Court of Appeal to state a case, and, if a case is thereupon
stated, it shall be dealt with as if it had been duly stated by such
Judge or magistrate. See section 1016 A., added in 1909.
By sec. 1017 the evidence may be sent to the Court of Appeal,
or any part thereof that is material.
And the Court of Appeal may send back any case to the Court
by which it was stated to have the same amended or restated.
By sec. 1018 upon hearing the appeal the Court of Appeal may,
(a) confirm the ruling appealed from; or (b), if of opinion that
the ruling was erroneous and that there has been a mis-trial in
consequence, direct a new trial; or (c), if it considers the sentence
erroneous, pass such sentence as ought to have been passed, or set
aside any sentence passed by the Court below and remit the case
to the Court below with a direction to pass the proper sentence.
See R. V. Edwards, (1907) 13 C. C. C. 202.
If the Court substitutes a different sentence the prisoner should
be brought into Court to receive sentence. Ibid.
(d) If of opinion, in a case in which the accused has been con-
victed, that the ruling was erroneous, and that the accused ought
to have been acquitted, direct that the accused shall be discharged,
which order shall have all the effect of an acquittal, or direct a new
trial; or (e) make such other order as justice requires.
This section (1018) does not make it obligatory on the Court
to direct a new trial in every case which comes before it under the
jurisdiction conferred by the Code. The language of the section
is permissive, and the Court, in addition to the other powers con-
ferred upon it, is enabled to make such other order as justice
requires.
" The matter is left to the Court to exercise its discretion in
each case as the circumstances seem to require. It follows that
there can be no general rule, and the Court ought not to attempt
to lay down, in any one case, the considerations which should
PROCEDURE ON APPEAL BY RESERVED CASE. 4:21
govern in another. The considerations influencing the exercise of
discretion in one class of cases may differ materially from those
affecting it in another class. Especially may this be so in cases
where the accused has been discharged and the Crown is appealing.
There the considerations that would govern where the accused was
convicted and was the appellant, would not necessarily be applic-
able." Moss, C.J.O., at pp. 106-107, in R. v. Burr, (1906) 12 C.
C. C. 103, citing E. v. Earn, (1903) 5 0. L. R. 704, 6 C. C. C. 479.
Where there has been an acquittal, the preferable practice is for
the trial Judge to refuse to reserve a case upon the application of
the prosecutor complaining of an erroneous direction, and for the
prosecutor to apply to the Court of Appeal under Code sec. 74H
(now 1016) for leave to appeal. Osler^ J.A., at p. 484, R. v.
Karn, supra.
The question of the weight of evidence is one entirely for the
jury, and, although there is a provision for granting a new trial
if the verdict is against the weight of evidence, it cannot be in-
voked on the part of the Crown. Eitchie, J., at p. 281, in R. v.
Pldnncy, (1903) 7 C. C. C. 280.
A single prior act of the like criminal nature as the subject jf
the charge, but not connected therewith, is not evidence proving
the criminal intent of the accused in the act charged. It is dis-
cretionary with the trial Judge to admit in reply, with leave to
answer the same, evidence of criminal intent which might have
been offered in chief. A new trial will be allowed on the ground of
the wrongful admission of evidence of an alleged prior similar
offence. R. v. Pollard, (1909) 15 C. C. C. 74.
If no Substantial Wrong the Conviction Stands.
1019. No conviction shall be set aside nor any new trial directed,
although it appears that some evidence was improperly admitted or re-
jected, or that something not according to law was done at the trial or
some misdirection given, unless, in the opinion of the Court of Appeal, some
substantial wrong or miscarriage was thereby occasioned on the trial : Pro-
vided that, if the Court of Appeal is of opinion that any challenge for the
defence was improperly disallowed, a new trial shall be granted.
New Trial by Order of Minister of Justice.
If, upon any application for the mercy of the Crown on behalf
of any one convicted of an indictable offence, the Minister of Jus-
tice entertains a doubt Avhether such person ought to have been
convicted, he may, instead of advising His Majesty to remit or com-
mute the sentence, after such inquiry as he tliinks proper, by an
422 MINOR OFFENCE INCLUDED IN THAT CHARGED.
order in writing direct a new trial at such time and before snch
Court as he may think proper. Section 1022 of the Code.
By sec. 1023 of the Code it is provided that the sentence of a
Court shall not be suspended by reason of an appeal unless the
Court expressly so directs, except where the sentence is that the
accused suffer death, or whipping. In all cases it shall be in the
discretion of the Court of Appeal in directing a new trial to order
the accused to be admitted to bail.
Part only Proved of the Offence Charged.
A police magistrate of a city or incorporated town, who is also
a police magistrate in and for the whole province, may try offences
committed anywhere in the province. Such police magistrate at
the summary trial of an indictable offence may, under sec. 951 of
the Code, convict the accused of any offence included in the offence
charged, although the whole offence charged is not proved, without
again offering the prisoner election as to the mode of trial. B. V.
McEwen, (1908) 17 M. E. 477, 13 C. C. C. 346.
Section 951 provides that every count shall be deemed divisible ;
and, if the commission of the offence charged as described in the
enactment creating the offence, or as charged in the count, includes
the commission of any other offence, the person accused may be
convicted of any offence so included which is proved, although the
whole offence charged is not proved ; or he may be convicted of an
attempt to commit any offence so included.
Upon an indictment for burglary and stealing, tiie prisoner may
be convicted either of burglary, that is entering a dwelling house
in the night with intent to commit an indictable offence therein, or
of house-breaking, of stealing in a dwelling house to the amount of
$25 (if the property stolen be laid in the indictment to be of that
value), or simply of theft, according to the facts proved. B. v.
Compton, 3 C. & P. 418.
Upon an indictment for assaulting and unlawfully wounding
and ill-treating the complainant and thereby occasioning him
actual bodily harm, the defendant may be convicted of common
assault. B. v. Oliver, 30 L. J. M. C. 12; B. v. Yeadon, 31 L. T.
M. G. 70.
By sub-sec. 16 of sec. 2 of the Code, " indictment" and "count"
respectively include information and presentment as well as in-
dictment, and also any plea, replication, or other pleading, any
MINOR OFPENCE INCLUDED IN THAT CHARGED. 423
formal charge under sec, 873a, and any record. And, upon a sum-
mary trial with consent for a charge of assault occasioning actual
bodily harm, the magistrate may convict of common assault. See,
however, R. v. Sharpe, 18 C. C. C. 133, supra, in which it was
decided that a magistrate, without the extended jurisdiction con-
ferred by section 777, could not try such a charge summarily.
Sec. 713 (now 951) of the Code applies to summary trials as well
as to trials upon an indictment. B. v. Goolen, (1904) 8 C. C. C.
157.
An indictment for rape includes the lesser charge of assault,
and a verdict thereon of common assault is properly followed by
a conviction, although the information was laid more than six
months after the commission of the offence. R. v. Edwards,
(1898) 3 C. C. C. 96. See R. v. West, [1898] 1 Q. B. 174; R. v.
Clarice, (1907) 13 C. C. C. 300.
Upon the trial of an indictment for wounding with intent to
disable, a verdict of " guiliy without malicious intent " is equiva-
lent to a verdict of acquittal, although the jury were instru<5teii
that, if intent to disable was negatived, they might still convict of
the simple offence of wounding. R. v. Slaughenwhite, (1905) 9
C. C. C. 1.73, 35 S. C. E. 607.
Punishment.
By sec. 1027 of the Code it is provided that, whenever a person
doing a certain act is declared to be guilty of any offence and to be
liable to punishment therefor, it shall be understood that such
person shall only be deemed guilty of such offence and liable to
such punishment after being duly convicted of such act.
A summary conviction for " unlawfully " committing an act
does not sufficiently charge that the act was " wilfully " done, to
constitute an offence under a statute which makes the latter an
essential element of the offence. Ex parte O'Shaughnessy, (1904)
8 C. C. C. 136.
A summary conviction for indecency under sec. 305 is bad if it
omits to state that the offence was committed "wilfully." Upon
motion for habeas corpus to discharge the prisoner on this ground,
it appeared that after the notice of motion was served a new con-
viction, in which the defect was cured, was substituted for the de-
fective one. The right to substitute a good for a bad conviction,
or commitment, after a motion for a. habeas corpus has long been
424 enfobce2o;nt of conviction.
recognized and acted upon. Application was discharged. B. v.
Barre, (1905) 11 C. C. C. 1, and see sec. 1130 of the Code.
Where a person is in custody upon a summary conviction, the
appropriate remedy to secure his discharge is by applying for a
writ of habeas corpus. Where an irregularity appears upon the
face of the proceedings, an order for discharge will not be made
on certiorari without habeas corpus being applied for. R. v. Goulet,
(1907) 12 C. C. C. 365.
A warrant of commitment must shew on its face that the
committing magistrate is one having jurisdiction to impose the
sentence recited therein. B. v. Hong Lee, (1009) 15 C. C. C. 39.
" There is, moreover, much to be said in favour of the view that
there is no inherent right in any foreigner that the proceedings
taken in our Courts shall be made wholly intelligible to him, even
though he should be charged with crime. ... In any case the
capacity of the interpreter is a question for the magistrate. AH
matters connected with the interpretation of evidence, etc., are for
him, and his finding cannot be attacked in this way," viz., by habeas
corpus. RiDDELL, J., in B. v. Meceklette, (1909) 15 C. C. C. 17.
A clerical error in dating the warrant of commitment as of the
day preceding the date of the information is a matter for amend-
ment, and is not a ground for discharge where a conviction, regu-
lar in form, has been returned. B. v. Farrell, (1907) 12 C. C. C.
524.
A stipendiary magistrate in Nova Scotia, acting within the
local limits of his jurisdiction, may summarily try a prisoner with
his consent for an offence committed outside of his territorial juris-
diction, but in the same province, by virtue of the powers conferred
by sec. 771 (a) (ii) and sec. 777 of the Code. Ex parte Seeley,
(1908) 13 C. C. C. 259, and see B. v. McEwen supra.
Degrees of Punishment.
Whenever it is provided that the offender shall be liable to
different degrees or kinds of punishment, the punishment to be
inflicted shall, subject to the limitation contained in the enactment,
be in the discretion of the Court or tribunal before which the con-
viction takes place. Section 1028 of the Code.
" Under the provisions of our law, where, as in the present
case, a statute prescribes as the punishment for an offence both fine
and imprisonment, the Court which convicts has the right in its
discretion to impose either a fine alone, or an imprisonment alone,
PUNISHMENTS IMPOSED BY SENTENCE, 425
or both, unless the statute declares a contrary intention and ex-
pressly over-rides the general rule contained in sec. 933 (now 1028)
of the Criminal Code, which the statute in the present case does
not do." WuRTELE, J., at pp. 20, 21, in E. v. Eohidoux, (1898) 3
C. C. C. 19.
" Although the word ' penalty ' generally applies to pecuniary
punishment, its primary meaning includes punishment by im-
prisonment as well as punishment by fine." Henry, J., at p. 63,
B. V. Gavin, (1897) 1 C. C. C. 59.
Imprisonment— Hard Labour.
On a summary trial for aggravated assault the magistrate, on
conviction, has jurisdiction to award costs against the accused in
addition to imposing the fine and imprisonment.
Imprisonment with hard labour may be imposed in default of
payment of fine and costs upon a summary trial for an indictable
offence. R. v. Burtress, (1900) 3 C. C. C. 536.
By sec. 1057 of the Code, imprisonment in a common gaol, &c.,
shall be with, or without, hard labour in the discretion of the Court
or person passing sentence, if the offender is convicted on indict-
ment or under the provisions of Part XVI. or XVIII., or in the
province of Saskatchewan or Alberta before a Judge of a Superior
Court, or in the ISTorth-West Territories before a stipendiary
magistrate, or in the Yukon Territory before a Judge of the Terri-
torial Court.
If the certificate of sentence to imprisonment in a penitentiary
is irregular for the omission of the date of sentence, leave may be
given on habeas corpus to return an amended certificate correct-
ing the omission. R. v. Wright, (1905) 10 C. C. C. 461.
By sec. 1051 of the Code, everyone who is convicted of any
offence not punishable with death, shall be punished in the manner,
if any, prescribed by the statute especially relating to such offence.
And ever}' person convicted of any indictable offence for which
no punishment is specially provided shall be liable to imprisonment
for five years. And every one who is summarily convicted of any
offence for which no punishment is specially provided shall be
liable to a penalty not exceeding fifty dollars, or to imprisonment,
with or without hard labour, for a term not exceeding six months,
or to both. Sec. 1052.
Every one who is convicted of an indictable offence not punish-
able with death, committed after a previous conviotion for an
426 SENTENCES THAT MAGISTRATE MAY IMPOSE.
indictable offence, is liable to imprisonment for ten years, imless
some other punishment is directed by any statute for the particular
offence. In such latter case the offender shall be liable to the
imprisonment directed, and not to any other. Sec. 1053.
Every one who is liable to imprisonment for life, or for any
term of years, or other term, may be sentenced to imprisonment for
any shorter term. Provided that no one shall be sentenced to any
shorter term of imprisonment than the minimum term, if any,
prescribed for the offence of which he is convicted. Sec. 1094.
For instance, any one convicted of stealing a post letter, bag,
&c., under sec. 364, is liable to imprisonment for life, or for any
term not less than three years. Consequently no one so convicted
can be sentenced for any shorter term of imprisonment than three
years.
Cumulative Punishment.
When an offender is convicted of more offences than one, before
the same Court or person, at the same sitting, or when any offender,
under sentence or undergoing punishment for one offence, is con-
victed of any other offence, the Court or person passing sentence
may, on the last conviction, direct that the sentences passed shall
take effect one after another. Sec. 1055.
Imprisonment in the Penitentiary.
Section 42 of the Penitentiary Act, E. S. C. 1906, ch. 147,
provides as follows :
" Every one who is sentenced to imprisonment for life, or for
a term of years not less than two, shall be sentenced to imprison-
ment in the penitentiary for the province in which the conviction
takes place."
Imprisonment for less than two years shall be in the common
gaol of the district, county or place in which the sentence is pro-
nounced, or, if there is no common gaol there, then in that common
gaol which is nearest to such locality, or in some lawful prison, or
place of confinement other than a penitentiary, in which the
sentence of imprisonment may be lawfully executed. See sec. 1056
of the Code.
If any one is sentenced to the penitentiary, and at the same
sitting or term of the Court trying him is sentenced for one or
more other offences, to a term of imprisonment less than two
IMPRISONMENT IN PENITENTIARY OR GAOL. 427
years each, he may be sentenced for such shorter term to im-
prisonment in the same penitentiary, such sentences to take effect
from the termination of his other sentence. Sec. 1056 (a).
And, if any one is sentenced for any offence, who is at the da/te
of such sentence serving a term of imprisonment in a penitentiary
for another offence, he may be sentenced for a shorter term than
two years to imprisonment in the same penitentiary, such sentence
to take effect from the termination of his existing sentence, or
sentences. Sec. 1056 (b).
In Manitoba and British Columbia, any one sentenced to im-
prisonment for a term less than two years may be sentenced to
any one of the common gaols in the province, unless a special
prison is prescribed by law. Sec. 1056 (c).
Under sec. 20 of the Prisons and Eeformatories Act, any
offender, whose age at the time of his trial does not, in the opinion
of the Court, exceed sixteen years, may be sentenced to imprison-
ment in any reformatory prison in the province in which the con-
viction takes place.
Warrant of Commitment.
A warrant of commitment must be certain and definite. And
a warrant is bad if it simply directs the gaoler to " imprison " the
defendant for the stated time without specifying the place of im-
prisonment. Re J. W. King, (1901) 4 C. C. C. 426.
The commitment must be to the common gaol of the county for
which the justices shall be acting.
Itt was held in E. v. Randolph, 4 C. C. C. 165, that, where a
conviction by a police magistrate on a summary trial of the
accused under Part XVI. of the Code imposes a longer term
of imprisonment than is authorized by law, the warrant of com-
mitment cannot be amended, as in such cases there is not a valid
conviction to sustain the same, on the ground stated by Ferguson,
J., at p. 168, as follows: —
" The provisions respecting amendments in case of summary
convictions do not, I think, apply to this case, which is a case of
summary trial."
This was followed in R. v. Shing, 17 C. C. C. 463, 20 M. R.
214, but is no longer law since the amendment of sec. 797 made
in 1913.
42 s convictions not quashed for want of form.
Convictions not Quashed for Want of Form.
By sub-sec. 2 of sec* 797, as enacted in 1913, it is provided
that the remedial provisions of sec. 1124 (which will be found
printed at p. 267, supra) shall apply to convictions or orders made
under the provisions of this Part' XVI.
Even before this enactment, it was held in R. v. Crawford, 20
C. C. O. 49, by all the Judges, that sec. 1124 applied to summary
trials, as well as summarj^ convictions, and R. v. Shing, supra, was
expressly dissented from.
By sec. 1129, no conviction, where the defendant has appeared
and pleaded and the merits have been tried, shall be set aside or
vacated in consequence of any defect of form whatever, but the
construction shall be such a fair and liberal construction as will
be agreeable to the justice of the case.
By sec. 1130 of the Code, it is specially provided that no con-
viction, sentence or proceeding under Part XVI. shall be quashed
for want of form ; and no warrant of commitment upon a convic-
tion under this Part shall be held void by reason of any defect
therein, if it is therein alleged that the offender has been con-
victed and there is a good and valid conviction to sustain the same.
A commitment is defective which recites a conviction that does
not disclose any offence within the section of the statute under
which the prosecution was had. R. v. Gibson, (1898) 2 C, C. C.
302. See, also, R. v. Beaudoin, 22 0. C. C. 312.
The commitment is not a judicial but simply a ministerial act,
carrying out the terms of the conviction, and is not a proceeding
that can be brought before the Court on certiorari. When the
conviction itself is valid the proper course to pursue in attacking
the commitment is by way of habeas corpus. Ex parte Bertin,
(1904) 10 C. C. O. 65.
The Court on liaheas corpus will not inquire as to whether the
prisoner, brought before a justice and remanded by him to gaol
for an offence committed in Canada, was arrested in the United
States and brought back to Canada without any extradition war-
rant. R. V. Walton, (1905) 10 C. C. C. 269.
On an application to quash a conviction the Oourt, as a condi-
tion to making an order quashing the same, on the ground of ex-
cess of jurisdiction, may provide in the order that no action shall
be brought against the justice or stipendiary magistrate by or
before whom such conviction, order or other proceeding Avas made
or had, or against any officer acting thereunder, or under any war-
rant issued to enforce anv such conviction or order. Sec. 1131
POWER OF SUSPENDING SENTENCE. 429
of the Code. See R. v. Morningstar, (1906) 11 C. C. C. 15, 11 0.
L. E. 318; R. v. Kehr, (1906) 11 C. C. C. 53.
The provisions of sec. 1131 do not extend to an application by
way of habeas corpus in Ontario to discharge the accused from
custody, as the discharge has not the effect of quashing the con-
viction. R. V. Lowry, (1907) 13 C. O. C. 105.
In awarding punishment, whether pecuniary, or corporal, the
magistrate should he careful not to exceed the authority given him
by the statute. See R. v. Barton, 13 Q. B. 389, and Barton v.
BricTcnell, 13 Q. B. 393.
Suspended Sentence.
1081. In any case in which a person is convicted before any Court
of any offence punishable with not more than two years' imprisonment,
and no previous conviction is proved agtiinst him, if it appears to the
Court before which he is so convicted, that, regard being had to the age,
character, and antecedents of the offender, to the trivial nature of the
offence, and to any extenuating circumstances under which the offence was
committed, it is expedient that the offender be released on probation of good
conduct, the Court may, instead of sentencing him at once to any punish-
ment, direct that he be released on his entering into a recognizance, with
or without sureties, and during such period as the Court directs, to appear
and receive judgment when called upon, and in the meantime to keep the
peace and be of good behaviour.
2. Where the offence is punishable with more than two years' imprison-
ment, the Court shall have the same power as aforesaid with the concur-
rence of the counsel acting for the Crown in the prosecution of the offender.
3. The Court may, if he thinks fit, direct that the offender shall pay
the costs of the prosecution, or some portion of tbe same, within such
period and by such instalments as the Court directs.
4. Where one previous conviction and no more is proved against the
person so convicted and such conviction took place more than five years
before that for the offence in question, or was for an offence not related
in character to the offence in question, the Court shall have the same
power as aforesaid with the concurrence of the counsel acting for the
Crown in the prosecution of the offender.
It is provided, by sec. 1082, that before directing the release of
an offender, under the last preceding section, the Court shall be
satisfied that the defendant, or his surety, has a fixed place of
abode, or regular occupation in the county, or place, for which the
Court acts, or in which the offender is likely to live during the
period named for the observance of the conditions.
The provisions of sec. 1081 can be applied to " any person,
convicted before any Court, of any offence punishable with not
more than two 3'ears' imprisonment, and where no previous convic-
tion is proved against him." By sub-sec. 2, wehre the offence is
punishable with more than two years' imprisonment, the Court has
the same power, but only with the concurrence of the counsel acting
430 PROCEDURE IN SUSPENDING SENTENCE.
for the Crown in the prosecution of the offender. In extending the
favour the Court shall take into consideration, (a) the age, (b)
the character and antecedents of the offender, (c) the trivial
nature of the offence, and any extenuating circumstances under
which the offence was committed. And the Court must be of the
opinion that, taking all these facts into consideration, it is ex-
pedient that the offender be released on probation of good conduct.
Then, instead of sentencing the offender at once to any punish-
ment, the Court may direct that he be released on his entering into
a recognizance, with or without sureties, and during such period
as the Court directs, to appear and receive judgment when called
tipon, and in the meantime to keep the peace and be of good
behaviour.
The condition, therefore, of the bond is that for the period
named, say two years, the offender will, at any time during that
period when called upon, appear and receive judgment, and in the
meantime he must keep the peace and be of good behaviour.
And by sub-sec. 3 the Court may also direct that the offender
shall pay the costs of the prosecution, or some portion of the
same, within such period and by such instalments as the Court
directs. This may he added to the condition of the bond.
It is only upon motion by the Crown that the recognizance of
the defendant and his bail is estreated, or that judgment is moved
against the offender who has been released on probation under
sec. lOSl. See R. v. Youngy (1901) 4 C. C. C. 580, and B. v.
Pettipas No. 2, 18 C. O. C. 74, where it was also held that it is
not essential to the release that the offence be of a trivial nature,
if there are other circumstances such as are mentioned in sec.
1081.
Where the accused has been convicted after summary trial and
is released on suspended sentence under sec. 1081, and a recogniz-
ance has been entered into, the magistrate has no jurisdiction to
impose sentence for the original conviction unless information
under oath has been laid charging the accused with a breach of the
recognizance and a warrant has issued for his apprehension. And
such a proceeding must be at the instance of the Crown. R. v.
Siteman, (1902) 6 C. C. C. 224.
Upon a summary trial under Part LV. (now XVI.) of the
Code the magistrate is a " Court " within the meaning of sees. 971
(now 1081) and 974 (now 1026) of the Code, and he may release
the accused upon suspended sentence. R. v. McLellan (No. 1),
(1905) 10 C. C. C. 1.
PROCEDURE UPON BREACH OF RECOGNIZANCE, 431
Where the accused is released upon suspended sentence and is
directed to pay the costs of the informant, and the conviction does
not provide when the costs are to be paid, such costs are payable
forthwith. The magistrate is not bound to direct that these costs
should be payable by instalments. Ihid.
By sec. 1026 of the Code " Court," when used in the sections
of Part XX. relating to suspended sentence, is declared to mean
and include any Superior Court of criminal jurisdiction, any
Judge or Court within the meaning of Part XVIII., and any
magistrate within the meaning of Part XVI., unless the context
otherwise requires. These sections are 1081, 1082 and 1083 now
under consideration.
The proper time for proving a previous conviction against a
prisoner is (under sec. 1081) not upon the trial of the offence, but
after the trial. If the Crown does not adduce evidence of a pre-
vious conviction the magistrate may, on his own initiative, search
the records of his office for the purpose of ascertaining if the ac-
cused had been previously convicted by him and of proving the
identity of the accused. See R. v. Bonnevie, (1906) 10 C, C. C.
376. And see B. v. Herrell, 1 C. C. C. 510, where it was held that
the magistrate can act only upon evidence adduced and not upon
his personal knowledge as to such identity.
See also R. v. Atkinson, 18 C. C. C. 279, as to evidence of
identity when a certificate of a former conviction is produced,
giving the same name and address of the person accused.
Warrant vthen the Eecognizancb has not been Observed.
1083. If a Court having power to deal with snch offender in respect
of his original offence or any justice is satisfied by information on oath
that the offender has failed to observe any of the conditions of his recogni-
sance, such Court or justice may issue a warrant for his apprehension.
2. An offender, when apprehended on any such warrant, shall, if not
brought forthwith before the Court having power to sentence him, be
brought before the justice issuing such warrant or before some other justice
in and for the same territorial division, and such justice shall either remand
him by warrant until the time at which he was required by his recogni-
zance to appear for judgment, or until the sitting of a Court having power
to deal with his original offence, or admit him to bail, with a sufficient
surety, conditioned on his appearing for judgment.
3. The offender when so remanded may be committed to a prison,
either for the county or place in or for which the justice remanding him
acts, or for the county or place where he is bound to appear for judgment ;
and the warrant of remand shall order that he be brought before the Court
before which he was bound to appear for judgment, or to answer as to his
conduct since his release.
An information on oath must be laid charging that the
offender has failed to observe some or all of the conditions of his
432 PROCEDURE AFTER BREACH OF RECOGNIZANCE,
recognizance, and then a warrant may issue. The warrant may be
issued by any justice having jurisdiction, or a Court having power
to deal with the offender in respect of his original offence. And
this warrant may be endorsed or " backed " under sec, 662 of the
Code.
When apprehended, the offender should be brought before " the
Court having power to sentence him," that is, the Court before
which he was originally convicted. If this is not possible, then
he may be brought before the justice issuing the warrant, or some
other justice in the same territorial division. Any such justice shall
either remand him by warrant, (a) until the time at which he was
required by his recognizance to appear for judgment, or (b) until
the sitting of a Court having power to deal with his original
offence, or (c) admit him to bail with a sufficient surety condi-
tioned on his appearing for judgment.
These provisions contemplate, and the inference can be readily
drawn that the offender may be brought before any Court " having
power to deal with his original offence/' That is, if the magistrate,
or Court, before whom he was originally convicted, is not avail-
able, and the offender cannot be brought before the Court, or
magistrate, that dealt with the original offence, then any other
magistrate or Court, having territorial jurisdiction and power to
deal with his original offence, may pass sentence upon the offender
as if he had been tried before such Court or magistrate in the first
place. This must be so since death may have removed the Judge,
or magistrate, who dealt with the original offence and put the
offender on suspended sentence.
By sub-sec. 3 the offender, when so remanded, may be com-
mitted to prison either for the county, or place, in and for which
the justice who remanded him acts, or for the county or place
where he is bound to appear for judgment. The warrant of re-
mand shall order that the offender be brought before the Court
before which he was bound to appear for judgment, or to answer
as to his conduct since his release.
As the recognizance required the offender to appear for sen-
tence or judgment before the Court or magistrate, before which he
was convicted, naturally it is before this Court, or magistrate,
that the offender should be brought if possible : however, any Court
or magistrate having jurisdiction may pass the sentence for which
the offender was liable, or deal with him as is deemed wise under
the circumstances. He may be required to enter into another
recognizance for srood behaviour, with or without sureties, and his
SUSPENDING SENTENCE — FINES AND FORFEITURES. 433
case dealt with as if he was before the Court or magistrate for
sentence immediately after his conviction.
It was a condition precedent to the Court exercising the power
of suspended sentence, under sec. 1081, that no previous convic-
tion is proved against the offender. By the amendment of 1909 —
sub-sec. 4 — this condition has been relaxed to the extent that,
where one previous conviction and no more is proved against the
person, and, (a) such conviction took place more than five years
before his present conviction, or (b) was for an offence not related
in character to the offence in question, the Court may, with the
concurrence of the counsel acting for the Crown in the prosecution
of the offender, exercise the power of suspending sentence.
So that, if a person is convicted for an offence in 1914 and
one previous conviction made in 1908 is proved against him, that
will not bar the right of the Court, with the consent of the Crown,
to put him on suspended sentence. Or if a person is convicted in
1910 for theft, and a previous conviction against him for assault
in 1909 is proved against him, the Court may also suspend sen-
tence. If, however, a person is convicted in December, 1910, of
theft, and a previous conviction in December, 1906, for the same
offence, or for housebreaking and theft (an offence related in
character) is proved against him, the Court will not be able to
exercise the powers granted by sec. 1081.
Fines and Forfeitures.
Whenever a fine may be awarded, or a penalty imposed for
any offence, the amount of such fine or penalty shall, within such
limits, if any, as are prescribed in that behalf, be in the discretion
of the Court or person passing sentence, or convicting, as the case
may be. Sec. 1029. of the Code.
A conviction must adjudge a forfeiture of the amount to the
fine as well as payment thereof. A prisoner is entitled to be
discharged under habeas corptis if the conviction merely ad-judge.
that he " forthwith pay $100, and in default of payment to be im-
prisoned for six months." R. v. CroweU, (1S97) 2 C. C. C. 34.
The conviction should read, " and I adjudge the said A. B. for
his said offence to forfek and pay the sum of," etc. See Form 32.
c.c.p. — 28 '
434 fines costs and expenses op the pboseoution.
Fines in Lieu of, ob in Addition to, other Punishment.
1035. Any person convicted by any magistrate under Part XVI. or
by any Court of an indictable offence punishable with imprisonment for
five years or less may be fined in addition to, or in lieu of, any punishment
otherwise authorized^ in which case the sentence may direct that, in default
of payment of his fine, the person so convicted shall be imprisoned until
such fine is paid, or for a period not exceeding five years, to commence at
the end of the term of imprisonment awarded by the sentence, or forthwith
as the case may require.
2. Any person convicted of an indictable offence punishable with im-
prisonment for more than five years may be fined, in addition to, but not
in lieu of, any punishment otherwise ordered, and in such case, also, the
sentence may in like manner direct imprisonment in default of payment
of any fine imposed.
3. Any corporation convicted of an indictable or other offence, punish-
able with imprisonment, may, in lieu of the prescribed punishment, be fined
in the discretion of the Court before which it is convicted.
Sub-section 3 was added in 1909.
Eeference should be had to sec. 720A, as to the procedure
against corporations under Part XV. And to sees. 916-920 as to
procedure by indictment against corporations.
Whenever any pecuniary penalty or any forfeiture is imposed
for any violation of any Act, and no other mode is prescribed for
the recovery thereof, the same may be recovered by civil action or
proceeding at the suit of His Majesty, or any private party suing
as well for His Majesty as for himself. Sec. 1038 of the Code.
Costs and Expenses of Prosecution.
1044. Any Court by which, and any Judge under Part XVIII., or
magistrate undejr Part XVI., by whom judgment is pronounced or recorded,
upon the conviction of any person for treason or any indictable offence, in
addition to such sentence as may otherwise by law be passed, may condemn
such person to the payment of the whole or any part of the costs or ex-
penses incurred in and about the prosecution and conviction for the offence
of which he is convicted, if to such Court or Judge it seems fit so to do.
2. Such Court or Judge may include in the amount to be paid such
moderate allowance for loss of time as the Court or Judge, by affidavits or
other inquiry and examination, ascertains to be reasonable.
3. The payment of such costs and expenses, or any part thereof, may
be ordered by the Court or Judge to be made out of any moneys taken
from such person on his apprehension, if such moneys are his own. or may
be enforced at the instance of any person liable to pay or who has paid
the same in such and the same manner, subject to the provisions of this
Act, as the payment of any costs ordered to be paid by the judgment or
order of any Court of competent jurisdiction in any civU action or pro-
ceeding may for the time being be enforced.
4. In the meantime, until the recovery of such costs and expenses from
the person so convicted as aforesaid, or from his estate, the same shall be
paid and provided for in the same manner as if this section had not been
passed ; and any money which is recovered in respect thereof from the
person so convicted, or from his estate, shall be applicable to the reimburse-
ments of any person or fund by whom or out of which such costs and
•jcpenses have been paid or defrayed.
WHAT COSTS MAY BE AWARDED, 435
In the absence of any regulations, some diflBculty may arise as
to what "costs and expenses in and about the prosecution, and con-
viction" should be properly allowed.
It is to be recollected that the provisions of this section relate
solely to the prosecution of indictable offences, and have no refer-
ence to offences punishable on summary conviction, so that a
magistrate will not be bound, in convictions under Part XVI., as
to the amount of the costs, by the provisions of sec. 770. The
table of fees set out in that section have relation only "to the
fees to be taken before justices under Part XV."
The authority for issuing process leading to trial of indictable
offences is that contained in Part XIII., sees. 653, et seq. And
in the absence of any specific provisions in Part XIII. or XIV.
as to justices charging any fees for informations, warrants, sum-
mons for witness, etc., issued under Part XVI., it is submitted
that they cannot charge any fees therefor. See R. v. Meehan (No.
2), 5 C. C. C. 312, and pp. 182, 359, supra; McGUUvray v. Muir,
7 C. C. C. 360, ante, p. 106, and R. v. Tisdale, 20 U. C. R. 272.
By sec. 576 of the Code, authority is given to the '* Superior
Courts of criminal jurisdiction" to make rules regulating the
sittings of the Courts and for regulating in criminal matters the
pleading, practice, and procedure in the Courts, including manda-
mtLS, certiorari, habeas corpus, prohibition, quo warranto, hail and
costs.
Prom the context, one would read this to mean that the costs
referred to are costs generally, and, no doubt, under sub-sec. (c),
which is very general in its language, the Courts have power to
make a tariff of fees relating to all criminal procedure.
And by sec. 1047 of the Cbde any costs ordered to be paid by a
Court pursuant to the provisions of sees. 1045 and 1046 shall, in
case there is no tariff of fees provided with respect to criminal
proceedings, be taxed by the proper officer of the Court accord-
ing to the lowest scale of fees allowed in such Court. in a civil suit.
And, if such Court has no civil jurisdiction, the fees shall be those
allowed in civil suits in a Superior Court of the province accord-
ing to the lowest scale.
As, in a majority of the provinces, magistrates do not adjudi-
cate upon civil matters, except by way of summary conviction, the
fees allowed in civil suits in the Superior Courts of the different
provinces according to the lowest scale will govern. The taxing
officer can either be the magistrate or his clerk.
436 TAXATION OF COSTS — ^ENPOKCING PAYMENT.
In England, these costs are now regulated by the " Costs in
Criminal Cases Act, 1908," 8 Edw. VII, c. 15. The allowances
to be made under this Act are fixed by the regulations of the
Secretary of State.
For bills of costs, see B. v. St. Louts, (1897) 1 C. C. C. 141,
and R. v. Gouilliould, (1903) 7 C C. C. 432.
By sub-sec. 2 of sec. 1044, the Court may include in the amount
of the costs or expenses a moderate allowance for loss of time.
This must be ascertained by affidavits, or other inquiry and ex-
amination, and the amount must be such as is thus ascertained to
be reasonable. This means an allowance for wages or salary for
each day's work lost by the complainant from his work, through
any injury sustained, or time lost by attending the trial. It is
very doubtful if the word " expenses " will also include any medical
or hospital expenses incurred by the person injured. The " costs
or expenses " are those incurred in and about the prosecution and
conviction for the offence, etc.
If the person convicted had any money on him when arrested,
and such money is his own, the costs and expenses may be paid
out of the same. Or payment may be enforced by process of the
CSourt itself, or recovered in a civil action.
Imprisonment in Default of Payment of Costs on Convic-
tion FOR Assault.
1046. If a person convicted on an indictment for assault, whether
with or without battery and wounding, is ordered to pay costs as afore-
said, he shall be liable, unless the said costs are sooner paid, to three
months' imprisonment, in addition to the term of imprisonment, if any, to
which he is sentenced for the offence, and the Court may, by warrant in
writing, order the amount of such costs to be levied by distress and sale
of the goods and chattels of the offender, and paid to the prosecutor, and
the surplus, if any, arising from such sale, to the owner.
2. If such sum is so levied, the offender shall be released from such
imprisonment
Compensation por Loss of Property.
1048. A Court on the trial of any person on an indictment may. if it
thinks fit, upon the application of any person aggrieved and immediately
after the conviction of the offender, award any sum of money, not ex-
ceeding one thousand dollars, by way of satisfaction or compensation for
any loss of property suffered by the applicant through or by means of
the offence for which such person is so convicted.
2. The amount awarded for such satisfaction or compensation shall
be deemed a judgment debt due to the person entitled to receive the same
from the person so convicted, and the order for payment of such amount
may be enforced in such and the same manner as in the case of any
costs aforesaid ordered by the Court to be paid.
COMPENSATION FOE LOSS OF PROPERTY. 437
The application is to be made by " any person aggrieved."
This includes any one who has suffered lose to his " property '^
through, or by means of, the offence of which the person is con-
victed.
The expression "' party aggrieved " is not a technical expression,
but one to be construed according to the ordinary meaning of the
word. Robinson v. Currey, 7 Q. B. D. 465. See supra, notes to
sec. 749, p. 321, et seq.
The application must be made immediately after the conviction,
and the sum of money awarded cannot exceed $1,000. The amount
so awarded for satisfaction and compensation shall be deemed a
judgment debt due to the person entitled to receive the same, that
is, " the person aggrieved," who has made the application and to
whom the sum of money is awarded by the order of the Court. The
order of the Court may be enforced in the same manner as pro-
vided by sec. 1044 as to costs.
As the sum awarded under this section (1048) is by way of
satisfaction or compensation for any " loss of property " suffered by
the applicant, it would seem to apply only to losses suffered for
instance by arson, or burglary, or housebreaking and theft, or
mischief under sec. 510 of the Code, or some offence by the commis-
sion of which the person convicted has occasioned loss of property
to the applicant. It cannot apply to any injury to the person of
the party aggrieved ; the loss must be to his property, so that if a
person suffers bodily injury by reason of an assault he cannot be
awarded compensation under this section. Such a person can be
granted an allowance for his loss of time under sec. 1044 (2), but
probably only for time lost in looking after the prosecution, attend-
ing the trial, &c.
Compensation of Bona Fide Purchasers of Stolen Property.
1049. When any prisoner has been convicted, either summarily or
otherwise, of any theft or other offence, including stealing or unlawfully
obtaining any property, and it appears to the Court, by the evidence,
that the prisoner sold such property or part of it to any person who had
no knowledge that it was stolen or unlawfully obtained, and that money
has been taken from the prisoner on his apprehension, the Court may, on
application of such purchaser and on restitution of the property to its
owner, order that out of the money so taken from the prisoner, if it is his,
a sum not exceeding the amount of the proceeds of the sale be delivered to
such purchaser.
If it is shewn that he has sold such property, or part of it, to
any person who had no knowledge that it was stolen or unlawfully
438 RESTITUTION OP STOLEN PKOPEBTY.
obtained, then, if the prisoner on his apprehension has money on
him, the Court, on the application of the purchaser, and on restitu-
tion of the properly to its owner, may order that out of the money
so found on and taken from the prisoner, if the money is really
his, a sum not exceeding the proceeds of the sale shall be paid and
delivered to the purchaser.
To entitle a person aggrieved to an order for the restitution
to him of money found upon a prisoner convicted of theft from
the person, proof must be adduced identifying the money so found
as being the money that was stolen. R. v. Haverstoch, (1901) 5
C. C. C. 113 ; but this would not prevent an order for compensation
out of such money on application made under sec. 1048 immedi-
ately after conviction.
A Superior Court of criminal jurisdiction may order the restor-
ation, to an accused person committed for trial, of articles found in
his possession and taken by the police, which are not connected
with the offence charged, and are not required for the purposes of
evidence. Ex parte McMichael, (1904) 7 C. C. C. 549.
As to what the word " property" includes, see paragraph (38)
of sec. 2 of the Code.
Restitution op Stolen Peoperty.
1050. If any person who is guilty of any indictable offence in steal-
ing, or knowingly receiving, any property, is indicted for such offence, by
or on behalf of the owner of the property, or his executor, or administrator,
and convicted thereof, or is tried before a Judge or Justice for such offence
under any of the foregoing provisions and convicted thereof, the property
shall be restored to the owner or his representative.
2. In every such case, the Court or tribunal before which such person
is tried for any such offence, sJiall have power to award, from time to time,
writs of restitution for the said property or to order the restitution thereof
in a summary manner.
3. The Court or tribunal may also, if it sees fit, award restitution of
the property taken from the prosecutor, or any witness for the prosecution,
by such offence, although the person indicted is not convicted thereof, if
the jury declares, as it may do, or if, in case the offender is tried without
a jury, it is proved to the satisfaction of the Court or tribunal by whom he
is tried, that such property belongs to such prosecutor or witness, and
that he was unlawfully deprived of it by such offence.
4. If it appears, before any award or order is made, that any valuable
security has been bona fide paid or discharged by any person liable to the
payment thereof, or, being a negotiable instrument, has been bona fide taken
or received by transfer or delivery, by any person, for a just and valuable
consideration, without any notice or without any reasonable cause to sus-
pect that the same had, by any indictable offence, been stolen, or if it
appears that the property stolen has been transferred to an innocent pur-
chaser for value who has acquired a lawful title thereto, the Court or
tribunal shall not award or order the restitution of such security or
property.
RESTITUTION OF STOLEN PROPERTY. 439
5. Nothing in this section contained shall apply to the case of any
prosecution of any trustee, banker, merchant, attorney, factor, broker or
other agent entrusted with the possession of goods or documents of title
to goods, for any indictable offence under sections three hundred and
fifty-eight or three hundred and ninety of this Act,
Miagistrates by whom any one is convicted under this Part of
the Code (XVI.) are given specific power to order restitution by
sec. 795 of the Code, as follows :
705. The magistrate by whom any person has been convicted under
the provisions of this Part may order restitution of the property stolen,
or taken or obtained by false pretences, in any case in which the Court,
before whom the person convicted would have been tried but for the
provisions of this Part, might by law order restitution.
When a person is convicted of stealing, or receiving stolen
property, the property so stolen, or received, shall be restored to
the owner or his representative. And for that purpose the Court
has power from time to time to award writs of restitution, or to
order the restitution thereof in a summary manner. There must
be a conviction before the order can be made.
Although there is no conviction, if it is proved to the satisfac-
tion of the Court or jury that the goods in question belong to the
prosecutor, or a witness, and that he was unlawfully deprived of
them, the Court, if it sees fit, may award restitution of the prop-
erty.
If, before any order or award is made, it appears to the Court
that, (a) any valuable security has been bona fide paid, or dis-
charged, by any person liable to the payment thereof, or, (b), being
a negotiable instrument, has been bona fide taken or received by
transfer or delivery for a just and valuable consideration without
notice or any reasonable cause for suspicion that it had been stolen,
or, ,(c) if it appears that the property, stolen has been transferred
to an innocent purchaser for value who has acquired a lawful
title thereto, the Court shall not award, or order, restitution of
such security or property.
The ownership of stolen property is only changed by sale in
marhet overt : White v. Spettigue, 13 M. & W. 603 ; but, even if sold
in marl-et overt, the property will still, on the conviction of the thief,
revest in the true owner and entitle him to recover in an action of
trover. Scattergood v. Sylvester, 19 L. J. Q. B. 447.
It seems to be acknowledged that there is no such thing as
"marl-et overt" in Canada, enabling a thief, by a sale there, to
vest a good title to the property stolen in the purchaser.
440 EECOVEEY OF STOLEN GOODS FROM PUECHASEK.
In England stolen animals purchased bona fide in marlcet overt
are the property of the purchaser until the conviction of the thief,
when the property reverts to the original owner. And the pur-
chaser cannot set up against the owner a claim for the keep of the
beasts during such period. Walker v. Mathews, 8 Q. B. D. 109.
The finder of lost goods has a good title to them against all the
world except the true owner, although the same were found in
another person's shop. Bridges v. Hawhsworth, 18 L. T. (O.S.)
154, 21 L. J. Q. B. 75. See Farquharson v. King, [1902] A. C.
325 ; Cready v. Lindsay, 3 A. C. 459.
Where goods had been purchased with money stolen from the
prosecutor, and were found in the house of the prosecutor, and the
thief was acquitted on technical grounds and brought an action to
recover the goods, judgment was given for the defendant in the
County Court, and this judgment was upheld on appeal. Cattlcy
v. Loundes, 34 W. E. 139.
Where there has been a conviction for obtaining property by
false pratences, the Court has power to order restitution of the
proceeds of the goods as well as of the goods themselves. The ap-
plication will only be granted if the proceeds are in the hands of
the prisoner or of an agent of his holding them for him. R. v. J J.
Central Crim. Court {Foisard's Case), 17 Q. B. D. 598, and 18
Q. B. D. 314. See also Ex parte Selig, 17 C. C. C. 70.
On an indictment for stealing goods the prisoner was acquitted,
the defence being that the goods were his own. Held, that it was
virtually a finding by the jury that the goods were not the pro-
perty of the prosecutor, and, therefore, that the Judge had no right
to order them to be restored to him. R. v. Eveleth, 5 Allen N". B.
E. 201.
If property stolen has been sold before the conviction, an appli-
cation may be made to the Court before which the prisoner is con-
victed for the restitution of the proceeds, and, if these are in the
hands of the prisoner, or of an agent who holds them for him, an
order should be granted. If the person holding the goods does
not hold them for the prisoner the application should not be
granted. R. v. JJ. Central C. C, supra.
Where, after the trial and conviction of a prisoner for theft, the
Judge who presided at the trial made an order directing that the
property found in his possession when he was apprehended should
be disposed of in a particular manner, such propertj' not being part
of that which had been stolen, nor connected therewith, it was held
PROCEEDS OF SALE OF STOLEN PROPERTY. 441
that the order was bad, as the Judge had no jurisdiction to make it.
E. V. City of London, E. B. & E. 509, 3:7 L. J. M. C. 231.
Wh3re the property stolen is considerable, it is advisable to try
the prisoner upon all the indictments in order that the Court may
make restitution, for, unless after judgment on the indictments
upon which he has been found guilty, the prisoner pleads guilty to
the others, the Court cannot award restitution.
In a case where a prisoner was convicted of stealing a bill o£
exchange and a considerable amount of money in specie, and the
evidence tended to shew that he must have purchased a horse with
part of the proceeds of the bill, the Court ordered the horse to be
delivered to the prosecutor. R. v. Powell, 7 C. ^ P. 640.
The Court will not, in general, award restitution where the
owner has been guilty of gross neglect in bringing the offender to
justice. 2 HawTc, ch. 23, 556.
The owner shall have no more goods than those mentioned in
the indictment, though other goods were stolen at the same time ;
and the reason is because by such omission the offender might have
escaped. 1 Hale, 545.
The Court has no jurisdiction to direct the disposal of property
found in the felon's possession not forming part of that stolen.
E. V. City of London, supra.
Where a prisoner pleaded guilty to stealing several articles, the
pawnbroker into whose hands the goods had come objected to any
order of restitution, saying that the pledging of the goods might
not have amounted to felony, and that as against his title to the
goods the prisoner's confession ought not to prevail. The Judges
said they were satisfied from the depositions that the prisoner was
not an agent, but was guilty of felony, and an order of restitution
was granted. E. v. MacJclin, 5 Cox 216, and see iJ. v. Wollez, 8
Cox 33-7.
The provisions of sec. 1050 do not apply to the cases of prosecu-
tion of any trustee, &c., for an indictable offence under sees. 358
or 390.
Bonds to Keep the Peace.
1058. Every magistrate under Part XVI. and every Court of criminal
jurisdiction before whom any person is convicted of an offence and is not
sentenced to death, shall have power in addition to any sentence imposed
upon such person, to require him forthwith to enter into his own recog-
nizances, or to give security to keep the peace, and be of good behaviour
for any term not exceeding two years, and that such person in default shall
442 BONDS TO KEEP THE PEACE — PUNISHMENTS.
be imprisoned for not more than one year after the expiry of his imprison-
ment under his sentence, or until such recognizances are sooner entered
into or such security sooner given.
2. Any such recognizance may be in Form ^.
The person must first be convicted of an offence, that is any
offence, indictable or otherwise. The recognizance is in addition
to any sentence imposed npon the person. He is required to forth-
with enter either into his own recognizance, or to give security to
keep the peace and be of good behaviour for any term not exceed-
ing two years.
In default the person, (a) shall be imprisoned for not more
than one year after the expiiy of his imprisonment under his
sentence, or (b) until such recognizances are sooner entered into,
or security sooner given.
It is only in cases where the person convicted is ordered to find
sureties and makes default that imprisonment is awarded, since he
can himself be bound over in open Court forthwith after sentence.
A recognizance does not require to be signed by either the person
convicted or his sureties. The recognizance may be in Form 49.
Further reference can be had to sees. 748 and 1059 in the last
chapter, and comments thereon and cases cited.
Punishment on Conviction under Section 773 (a) or (b).
780. In the case of an offence charged under paragraph (o) or (B)
of section seven hundred and seventy-three, the magistrate, after hearing
the whole case for the prosecution and for the defence, shall, if he finds
the charge prov«d, convict the person charged and commit him to the com-
mon gaol or other place of confinement, there to be imprisoned, with or
without hard labour, for any term not exceeding six months.
These offences are, (a) theft, obtaining money or property
by false pretences, or unlawfully receiving stolen property where
the value does not, in the judgment of the magistrate, exceed ten
dollars, or (b) with attempt to commit theft.
Sub-sec. 3 of sec. 777 expressly declares that sees. 780 and 781
do not extend, or apply to cases tried under that section. This
means that any person tried v/ith his own consent and convicted,
before any magistrate exercising and having jurisdiction under sec.
'J'77, of an offence which such magistrate can only try under that
section, may have imposed on him the full penalties enacted for
these offences by the sections of the Code governing these offences,
and the punishment need not be limited to six months. For in-
stance, by sec. 386 of the Code, everyone is guilty of an indictable
PUNISHMENT FOE OFFENCES (c) TO (g) OF SECTION 773. 443
offence and liable to seven years' imprisonment who steals any-
thing, for the stealing of which no punishment is otherwise pro-
vided, &c. But when the offence is one coming within sec. 773, as
theft of not more than $10, even a city police magistrate cannot
impose more than six months imprisonment. See R. v. Hayward,
(1902) 6 C. C. C. 399, and JEJx parte McDonald, (19014) 9 C. C. C.
368, and comments and cases cited at page 393, supra.
Punishment foe Offences (c), (d), (e), (f) and (g) of
Section 773.
781. In any case summarily tried under paragraphs (c) , (d), (e),
(/) or (g), of section seven hundred and seventy-three, if the magistrate
finds the charge proved, he may convict the person charged and commit him
to the common gaol or other place of confinement, there to be imprisoned,
with or without hard labour for any term not exceeding six months, or
may condemn him to pay a nne not exceeding, with the costs in the case,
two hundred dollars, or to both fine and imprisonment not exceeding the
said sum and term.
2. Such fine may be levied by warrant of distress under the hand and
seal of the magistrate, or the person convicted may be condemned, in
addition to any other imprisonment on the same conviction, to be com-
mitted to the common gaol or other place of confinement for a further
term not exceeding six months, unless such fine is sooner paid.
Paragraph (c) of sec. 773 relates to unlawful wounding or
inflicting grievous bodily harm, either with or without a weapon
or instrument, (d) indecent assaults upon males and females, (e)
assaulting or obstructing any public, or peace officer, engaged in
the execution of his duty, or any person acting in aid of such
officer, (/) with keeping a disorderly house under sec. 228, or
(g) with any offence under sec. 235, betting or pool selling.
Upon conviction, the magistrate in any of these cases, sum-
marily tried by him, whether or not he has the extended jurisdic-
tion under sec. 777, in the present editor's opinion, can only
impose imprisonment, with or without hard labour, for any term
Hot exceeding six months, or condemn him to pay a fine not exceed-
ing with the costs in the case $200, or to both fine and imprison-
ment.
See remarks on sec. 780, supra, and comments on page 393,
supra.
Powers of all Magistrates Curtailed by Sec. 781 as
TO Sentences foe Offences under Sec. 773.
So that thei punishments prescribed by sees. 780 and 781, are
the maximum sentences that can be imposed by any magistrates
trying cases coming within sec. 773.
444r LIMITATION OF FINES AND IMPRISONMENT.
It is to be carefully noted that the fine which can be imposed
under sec, 781 must not exceed $200, with costs in the case. So
that if a man was fined $800 and costs the conviction would be
bad. The best way to avoid difficulty, if costs are to be imposed,
is to make the fine the difference between $200 and the costs or a
less amount. For instance, if the costs amount to $2.35, then
make the fine $197.65 or less. If the full fine of $200 is imposed,
then the conviction should shew on the face of it that there are
no costs. See R. v. Perry, (1899) 35 C. L. J. 174; R. v. Cyr, 12
P. E. 24; R. V. Stark, 19 C. C. C. 6/7, 21 M. E. 345.
Where the law authorizing the conviction does not specify any
term of imprisonment unless the penalty is sooner paid, a magis-
trate can only award three months' imprisonment in default of
payment of the fine, as provided by sec. 739 of the Code. And
where a person was convicted for keeping a disorderly house and
fined $50, and in default six months' imprisonment, the conviction
was held bad and the prisoner discharged. See R. v. Horton,
(1898) 34 C. L. J. 42; B. v. Baugie, (1899) 3 C. C. C. 487; R. V.
Howes, (1902) 6 C. C. C. 238.
The last two cases were distinguished in R. v. Nelson, 22 C. C.
C. 301, on the ground that they had reference to convictions under
a section of the Code which did not specify any term of imprison-
ment in default of payment of the fine, and it was expressly held
in R. V. Nelson, that sub-sec. 2 of sec. 781 authorises imprison-
ment for six months in default, although there be no absolute im-
prisonment ordered by the conviction, also that such imprisonment
may be with hard labour, under sees. 739 (2) and 1057.
Where there is nothing upon the face of a conviction for keep-
ing a house of ill-fame to shew whether the convicting magistrate
was acting under this Part XVI., or under summary conviction
Part XV., and the conviction, being defective in form, can be
amended under Part XV., the Court will treat it as a summary
conviction, and correct the same under sec. 1124 by reducing the
term of imprisonment where the sentence is in excess of that
authorized by law. R. v. Spooner, (1900) 4 C. C. C. 209. And
see R. V. Roberts, (1901) 4 C. C. C. 253; R. v. Carter, (1902)
5 C. C. C. 401, R. V. Rudolph, 17 C. C. C. 206.
Sec. 169 of the Code provides that every one who resists or
wilfully obstructs any peace officer in the execution of his duty,
etc., is guilty of an offence punishable on indictment, or on sum-
mary conviction, and liable if convicted on indictment to two
years, and on summary conviction before two justices to six
JURISDICTION IN CASES OF THEFT, ETC., OVER $10. 445
months' imprisonment with hard labour, or a fine of $100. This
section 169 is not controlled by sees. 773 and 774 of the Code.
See sub-sec. 2 of sec. 774 and notes on pp. 386, 387.
As to what may amount to an unlawful obstruction of a peace
oflBcer in the execution of his duty in searching a house for liquor
under the New Brunswick Liquor License Act of 1903, see R. v.
Matheson, 21 C. C. C. 312.
The consent of the accused is not necessary to the justices
having Jurisdiction to try the offence under sec. 169. B. v. Jack,
(1902) 5 C. C. O. 304, and cases cited at pp. 386-7 supra.
Theft, False Pretences over $10.
782. When any person is charged before a magistrate with theft, or
with having obtained property by false pretences, or with having unlaw-
fully received stolen property, and the value of the property stolen, obtained
or received exceeds ten dollars, and the evidence in support of the prosecu-
tion is, in the opinion of the magistrate, suflScient to put the person on
his trial for the offence charged, such magistrate^ if the case appears to
him to be one whicli may properly be disposed of in a summary way, shall
reduce the charge to writing, and shall read it to the said person, and,
unless such person is one who, under section seven hundred and seventy-
five, can be tried summarily without his consent, t^all then put to him the
question mentioned in section seven hundred and seventy-eight, and shall
explain to him that he is not obliged to plead or answer before such
magistrate, and that, if he does not plead or answer before him, he will be
committed for trial in the usual course.
783. If the person charged as mentioned in the last preceding section
consents to be tried by the magistrate, the magistrate shall then ask him
whether he is guilty or not guilty of the charge, and if such person says
that he is guilty, the magistrate shall then cause a plea of guilty to be
entered upon the proceedings, and sentence him to the same punishment as
he would have been liable to if he had been convicted upon indictment in
the ordinary way ; and, if he says that he is not guilty, he shall be
remanded to gaol to await his trial in the usual course.
The limited jurisdiction conferred by these sections is con-
fined to the class of magistrates mentioned in sec. 771, and having
jurisdiction under sec. 773. It does not limit the jurisdiction of
magistrates in cities and towns acting under sec. 777. A magis-
trate having authority and acting under sec. 777 has, with the
consent of the accused, full authority to try and determine the
offences mentioned in sec. 782, and to impose the maximum
penalties.
If a person is charged before a city stipendiary with theft, and
the value of the goods stolen exceeds $10, such magistrate is not
bound to remand him under sec. 783 upon his pleading "not
guilty," his jurisdiction being under sec. 777, and he may try the
charge and impose the same punishment as might be imposed by
a Court of General Sessions. B. v. Bowers (No. 2), (1903) 6 C.
C. C. 264.
446 PEOCEEDINGS UNDER SECTIONS 782 AND 783.
The class of magistrates upon whom extra jurisdiction is con-
ferred by these sections, 782 and 783, have authority under sec.
773 with the consent of the accused to summarily dispose of the
charges of theft, false pretences and receiving stolen property
where in the opinion of the magistrate the value of the property
in question does not exceed ten dollars in value. The jurisdiction
conferred by sec. 782 is to enable these magistrates to deal sum-
marily with these offences where the value of the property exceeds
ten dollars. The procedure laid down must be followed strictly.
The proceedings up to the close of the case for the prosecution
are to be conducted in every respect as upon a preliminary inquiry
under Part XIY. And if, in the opinion of the magistrate, the
evidence in support of the prosecution is sufficient to put the
person on his trial for the offence charged, and it appears to him
to be a case that should be disposed of summarily, he may then
reduce the charge to writing and read it to the accused. The
language is that the magistrate " shall reduce the charge to writing
and shall read it to said person." But, if the charge that he has
been investigating has already been reduced to writing in the sworn
information upon which his inquiry has been based, hje need not,
it is submitted, go through the formality of writing out the charge
again. On this point see notes to sub-sec. 3 of sec. 778, supra.
And, unless ihe accused is a seafaring person over whom the magis-
trate has absolute jurisdiction under sec. 775, then the magistrate
shall put to him the question mentioned in sec. 778, and shall ex-
plain to him that he is not obliged to plead or answer before such
magistrate, and that, if he does not plead or answer, he will be
committed for trial in the usual course. That is, the magistrate
in this event will proceed as under sec. 684 on a preliminary in-
quiry. If however the person charged consents to be tried by the
magistrate, he shall then be asked "whether he is guilty or not
guilty of the charge." If he says he is guilty, then such a plea
shall be entered on the proceedings, and the magistrate may pro-
ceed to sentence him to the same punishment as if he had been
convicted upon indictment. If however the accused person says
he is "not guilty," he shall be remanded to gaol in the usual
course.
That the proceedings, as on a preliminary inquiry, must be
strictly complied with, see R. v. Williams, (1905) 10 C. C. C. 330.
Magistrates of cities and towns, having jurisdiction under sec.
777, are not controlled in any way by sees. 782 and 783 as respects
the trial and disposition of the offences of theft, false pretences
MAGISTRATE NOT BOUND TO TET SUMMARILY. 447
and receiving when the value of the property exceeds $10, but may
proceed to the trial of such offences with the consent of the ac-
cused, without any preliminary inquiry. R. v. McLeod, (1906)
12 C. C. C. 73.
Where there is a valid conviction under sec. 777, the warrant
of commitment need not recite that the charge was read over to
the accused as required by sec. 778, before he was asked to plead,
for the omission, if otherwise material, is cured by sec. 1130. Ibid.
A couniy stipendiary magistrate has no jurisdiction to hold a
summary trial of an indictable offence where the jurisdiction de-
pends on sec. 777 (2) of the Code.
Such a magistrate may have jurisdiction as such within a city
inside of his county, yet he is not a stipendiary magistrate of the
city. R. V. Nar Singh, (1909) 14 C. C. C. 454. See R. v. Lee
Guey, (1907) 13 C. C. C. 80; R. v. Benner, 8 C. C. C. 398, and
R. V. Oiovanetti, 5 C. C. C. 157.
Where, before sentence on a plea of guilly, it appears that the
accused disputed that he had so pleaded, and claimed a justifica-
tion or excuse for the act charged against him, the magistrate
should have allowed the accused to change his plea to not guilty
and tried the case on the evidence. R. v. Lamothe, (1908) 15
C. C. C. 61.
Magistrate May Decide not to Peooeed.
784. If in any proceeding under this Part, it appears to the magis-
trate that the offence is one which, owing to a previous conviction of the
person charged, or from any other circumstance, ought to be made the
subject of prosecution by indictment rather than to be disposed of sum-
marily, such magistrate may, before the accused person has made his
defence, decide not to adjudicate summarily upon the case ; but a previous
conviction shall not prevent the magistrate from trying the offender sum-
marily, if he thinks fit so to do.
785. If, when his consent is necessary, the person charged elects to
be tried before a jury, the magistrate shall proceed to hold a preliminary
inquiry as provided in Parts XIII. and XIV., and, if the person charged
is committed for trial, sliall state in the warrant of committal the fact of
such election having been made.
Where the accused has consented to summary trial, and has
made his defence and the magistrate has acquitted him, the
magistrate has no further jurisdiction, and cannot accept the
recognizance of the prosecutor to prefer an indictment. R. v.
Burn'! (No. 2), (1901) 4 C. C. C. 330.
It is too late, after the accused has made his defence, for the
magistrate to decide to commit for trial. R. v. Hicks, 20 C. C. C.
192.
448 couet must be open to the public.
Full Defence Must be Allowed.
786. In every case of summary proceedings under this Part, the person
accused shall be allowed to make his full answer and defence, and to have
all witnesses examined and cross-examined by counsel or solicitor.
Where the magistrate expressed his opinion that, in view of
the evidence adduced by the prosecution, a denial by the defend-
ant on oath of the charge would not alter his opinion as to her
guilt, and after that expression of opinion the counsel who ap-
peared for the defendant did not further press for her examina-
tion as a witness on her own behalf. Held that there was no
denial of the right of the defendant " to make her full answer
and defence to the charge." E. v. McGregor, .(1895) 2 C. C. C.
410.
Objections at Trial.
See page 252, supra.
Proceedings in Open Court.
It is provided by sec. 787 that every- Court held by a magis-
trate for the purposes of this Part shall be an open puhlic Court.
Section 645 provides for the exclusion of the public at the
trial of any person charged with an offence under the sections of
the Code therein set out, as follows: sees. 202 to 206, 211 to 220.
228, 238 in part, 239 in part, 292 and 293, 299 to 306 and 313
and 314.
The Court or Judge or justice may order that the public be
excluded from the room or place in which the Court is held dur-
ing the trial. And such order may be made in any case othor
than those enumerated above, where the Court or Judge, or jus-
tice, may be of opinion that the same will be in the interest of
public morals. And nothing in the section shall be construe!
by implication or otherwise as limiting any power heretofore pos-
sessed at common law by the presiding Judge, or other presiding
oflBcer of any Court, of excluding the general public from the
court-room in any case where such Judge or officer deems such
exclusion necessary or expedient.
Taking a View.
The magistrate has no power to take a view except by consent
of the parties, and, if he does, a conviction following will be
PKOCURING ATTENDANCE OF WITNESSES. 449
quashed: B. v. Crawford, 21 C. C. C. 70. See notes to this case,
ib., pp. 72-78, and see, also. Re Sing Kee, 5 0. 0. C. 86.
Procueinq Attendance of Witnesses.
788. The magistrate before whom any person is charged under the
provisions of this Part, may, by summons, or by writing under his hand,
require the attendance of any person as a witness upon the hearing of
the case, at a time and place to be named in such summons, and such
magistrate may bind, by recognizance, all persons whom he considers neces-
sary to be examined, touching the matter of such charge, to attend at the
time and place appointed by him and then and there to give evidence upon
the hearing of such charge.
2. If any person so summoned, or required or bound as aforesaid,
neglects or refuses to attend in pursuance of such summons or recognizance,
and if proof is made of such person having been duly summoned as herein-
after mentioned, or bound by recognizance as aforesaid, the magistrate
before whom such person should have attended may issue a warrant to
compel his appearance as a witness.
789. Every summons issued under the provisions of this Part may
be served by delivering a copy of the summons to the person summoned,
or by delivering a copy of the summons to some inmate of such person's
usual place of abode apparently over sixteen years of age.
2. Every person required by any writing under the hand of the magis-
trate to attend and give evidence as aforesaid shall be deemed to have been
duly summoned.
Presumably the summons may be in Form 11, or to the like
effect, as prescribed by sec. 671.
By sec. 672, every summons for a witness issued under sec.
671 must be served by a constable, or other peace officer, upon the
person to whom it is directed, either personally, or if such person
cannot be conveniently met with, by leaving it for him at his last
or most usual place of abode, with some inmate {hereof apparently
not under 16 years of age. There is nothing in sec. 789 about a
summons issued under 788 being served by a peace officer, but it
is advised that service should be so effected.
It is only in cases where a person is " charged under the pro-
visions of this Part," that is, has consented to be tried summarily
by a magistrate, that the provisions of sees. 788 and 789 apply.
If the person elects to be tried by a jury, the magistrate shall pro-
ceed under Parts XIII. and XIV. (sec. 785), and consequently
the provisions of sees. 671 to 677, inclusive, will be used for pro-
curing the attendance of witnesses.
The warrant which a magistrate may issue in default of a wit-
ness attending may be in form 12, the same as provided for under
sec. 673. ■ ~
c.c.p. — 29
460 ADJUDICATION UPON THE CHABGE.
See the comments upon and cases cited under eecs. 671, et seq.^
supra.
. Dismissal of the Charge; Effect op Conviction.
790. Whenever the magistrate finds the offence not proved, he shall
dismiss the charge, and make out and deliver to the person charged a certifi-
cate under his hand stating the fact of such dismissal.
791. Every conviction under this Part shall have the same effect as
a conviction upon indictment for the same offence.
792. Every person who obtains a certificate of dismissal or is con-
victed under the provisions of this Part, shall be released from all further
or other criminal proceedings for the same cause.
793. The magistrate adjudicating under the provisions of this Part
shall transmit the conviction or a duplicate of the certificate of dismissal,
with the written charge, the depositions of witnesses for the prosecution
and for the defence, and the statement of the accused, to the clerk of the
peace or other proper officer for the district, city, county or place wherein
the offence was committed, there to be kept by the proper officer among
the records of the general or quarter sessions of the peace or of any Court
discharging the functions of a Court of General or Quarter Sessions of the
Peace.
The City Clerk of Halifax is not the proper officer with whom
to file such papers, and the magistrate could amend or correct his
conviction after filing it with such clerk. R. v. Smith, 19 C. C. C.
253.
794. A copy of such conviction, or of such certificate of dismissal,
certified by the proper officer of the Court, or proved to be a true copy,
shall be sufficient evidence to prove a conviction or dismissal for the offence
mentioned therein in any legal proceedings.
The forms of conviction and certificate of dismissal under this
part are prescribed by sec, 799, as follows: —
799. A conviction or certificate of dismissal under this Part may be
in the Form 55, 56 or 57, applicable to the case or to the like effect ; and,
whenever the nature of the case requires it. such Forms may be altered by
omitting the words stating the consent of the person to be tried before the
magistrate, and by adding the requisite words, stating the fine imposed, if
any, and the imprisonment, if any, to which the person convicted is to be
subjected, if the fine is not sooner paid.
Where a conviction omitted to set out the consent to the charge
being summarily tried, held that the defect was cured by sec.
1130, being a matter of form only. See R. v. Burtress, 3 C. C. C.
536.
The words used in form 55 are "(and consenting to my trying
the charge summarily)."
The effect of the provisions of sees. 790, 791 and 792 is to place
a person who has been tried under this Part, and been either
EELEASE FROM FUETHEE PEOCEEDINGS. 451
acquitted or convicted, in the same position, as to his legal rights,
as if he had been tried upon an indictment and the jury had
returned a verdict of guilty or not guilty. Since, by sec. 792, a
person who obtains a certificate of dismissal thereby obtains a
release from all further or other criminal proceedings for the same
cause, and as, by sec. 791, a conviction under this Part shall have
the same effect as a conviction upon an indictment for the same
offence, such convictioii will operate as a release from all further
or other criminal proceedings for the same cause.
Release from Further Proceedings.
And, by sec. 1079 of the Code, it is provided that, when
any person convicted of any offence has paid the sum ad-
judged to be paid, together with costs, if any, under such convic-
tion, or has received a remission thereof from the Crown, or has
suffered the imprisonment awarded for non-payment thereof, or
the imprisonment awarded in the first instance, or has been dis-
charged from his conviction by the justice in any case in which
such justice may discharge such person, he shall be released from
all further or other criminal proceedings for the same cause.
As to pleading autrefois acquit or anitrefois convict, see sees.
905, 906, 907 and 908 of the Code, and notes at pages 40, 41,
supra.
If the former conviction was made by a magistrate who had
no jurisdiction to try the case, the plea of autrefois convict cannot
be sustained, and the burden of proof is upon the accused to shew
that the magistrate had such jurisdiction. R. v. Taylor, 22 C. C.
C. 234. See also R. v. Pope, 327. A plea of autrefois acquit
will not hold where it is based only on a discharge on habeas cor-
pus for irregularities in the proceedings before the magistrate.
R. V. DicJc, 22 C. 0. C. 188.
Where the name of the accused, the place of the offence and
the character of the offence are the same in the certificate of con-
viction produced in proof of a plea of autrefois convict and in the
charge then being tried, it will be presumed that the accused is the
party named in such certificate without parol evidence of identity.
R. V. Clarlc, (1904) 9 C. C. C. 125.
We must bear in mind the well established principle of our
criminal law that a series of charges shall not be preferred, and
whether a person accused of a minor offence is acquitted, or con-
victed, he shall not be charged again on the same facts in a more
462 BEMAND BY JUSTICE TO MAGISTRATE.
aggravated form. Jf Bl. Com. 336; 2 Hale, 251. And see R. v.
Bombardier, (1905) 11 C. C. O. 216; Ex parte Flanagan, (1899)
5 C. C. C. 82; ;?. V. Quinn, (1905) 10 C. C. C. 412; i?. v. Johnson.
17 0. C. C. 172.
Eemand by Justice to Magistrate.
796. Whenever any person is charged before any justice or justices,
with any offence mentioned in section seven hundred and seventy-three, and.
in the opinion of such justice or justices, the case is proper to be disposed
of summarily by a magistrate, as in this Part provided, the justice or
justices before whom such person is so charged may, if he or they see fit,
remand such person for trial before the nearest magistrate in like manner
in all respects as a justice or justices are authorized to commit an accused
person for trial at any Court : Provided that no justice or justices, in
any province, shall so remand any person for trial before any magistrate
in any other province.
2. Any person so remanded for trial before a magistrate in any city
may be examined and dealt with by the said magistrate or any other magis-
trate in the same city.
The provisions of this section are only applicable in respect to
the offences mentioned in sec. 773, as to which see p. 384.
The object of investing justices with the powers here granted
is to facilitate the trial of these offences and allow them to be
disposed of quickly.
A justice of the peace has alternative courses to pursue, either
to remand the accused before a magistrate, or commit him for trial
in the usual way. A justice of the peace may make a remand in
such cases before a magistrate in the same city in which he him-
self resides and has jurisdiction.
Appeals from Convictioxs Under Sec. 773.
797. When any of the offences mentioned in paragraphs (a) or (/)
of section seven hundred and sevent.v-three is tried in any of the provinces
under this Part before two justices of the peace sitting together, an appeal
shall lie from a conviction for the offence in the same manner as from
summary convictions under Part XV., and all provisions of that Part re-
lating to appeals shall apply to every such appeal.
2. The provisions of section 1124 shall apply to convictions or orders
made under the provisions of this Part.
The above is sec. 797 as re-enacted in 1913, and it will be ob-
served that it is only when a conviction is made for an offence
mentioned in paragraphs (a) or (f) of sec. 773, ly two justices of
the peace sitting together, that the appeal will lie as from a summary
conviction. No such appeal will lie from a conviction by a police
or stipendiary magistrate, whether he derives his jurisdiction from
sec. 771 or section 777. See B. v. Dnhuc, 22 C. C. C. 426.
APPEALS FKOM CONVICTIONS UNDER THIS PART, 453
So that the only appeal that can be taken from the conviction
of a magistrate exercising jurisdiction either under sec. 771 or
under sec. 777 is by way of reserved case upon questions of law.
as provided by sees, 1013-1021. Eeference can be had to the dis-
cussion on appeal in the previous part of this chapter.
Eeference has already been made in this work to sub-section 2
of sec. 797 printed above and sec. 1184 referred to. See page 261.
where the remedial effect of these provisions in curing defects in
convictions is pointed out.
Provisions of Parts XIII. to XV. Not to Apply.
798. Except as specially provided for in the two last preceding sec-
tions, neither the provisions of this Act relating to preliminary inquiries
before justices, nor of Part XV., shall apply to any proceedings under this
Part,
A magistrate in dealing with a case under Part XVI. is not, by
virtue of sec. 711 of the Code, to take depositions in the manner
prescribed by sec. 682 of the Code. He is relieved from the duty
of reading over the depositions to the witnesses before the pris-
oner enters on his defence by reason of the provisions of sec. 798
of the Code. R. v. Klein, 11 W, L, E, 249.
For the same reason there is in general no appeal to a County
Judge from a conviction under this Part,
Juvenile Offenders.
779. Whenever the person charged appears .to be of, or about, or
under the age of sixteen years, and is not represented by counsel present at
the time, the magistrate shall not proceed under the last preceding section
without first asking the person charged what his age is.
2. If such person then states his age as being sixteen years or less,
the magistrate shall defer any further action, and shall at once cause
notice to be given to the parent or parents of such person, living in the
province, if any, or if he has no such parents, or if his parents are un-
known, then to the guardian or householder if any, with whom he ordin-
arily resides, of such person having been so charged, and of the time and
place when such person will be called on to make his election as to whether
he will be tried by the said magistrate.
3. Such notice shall allow reasonable time for the said parents,
guardian or householder to be present and advilse the said person charged
before he is called on to so elect.
4. At the time fixed by such notice, or. if it appears to the satisfac-
tion of the magistrate that there is no person for whom notice is provided
as aforesaid, or that all reasonable means to give such notice have been
taken without success, then, at the earliest convenient time, the magistrate
shall proceed as in the last preceding section provided.
5. If any person notified as aforesaid is present at the time so fixed,
the magistrate shall afford him an opportunity to advise the person charged
before he is called upon to elect.
454 LEGISLATION FOE JUVENILE DELINQUENTS.
6. The notice provided for b^ this section may be given by registered
letter, if the person to be notified does not reside in the city, town or
municipality where the proceedings are had.
This is the only section in Part XVI. that has not yet been
considered. Although left to the last, its provisions are none the
less important. Since the manner of dealing with juvenile delin-
quents has been almost entirely revolutionized through the passing
in recent years of advanced legislation, one seems to feel that this
enactment is out of place and has no business where it is. One has
no quarrel with the procedure laid down as to notice to parents,
etc., but it disturbs one's ideas as to how juvenile offenders should
be dealt with, and it is to be regretted that such antiquated legis-
lation should be left upon the statute book.
The latest legislation on the subject is the " Juvenile Delin-
quents' Act, 1908" (7-8 Edw. VII. c. 40), and it is to be hoped
that little time will be lost in incorporating this Act into the
Criminal Code and making its provisions the general law of Can-
ada. As the law now stands this Act can only be put in force in
cities, towns and other portions of the provinces by proclamation,
after the Governor in Council is satisfied that proper facilities for
the carrying out of the provisions of the Act have been provided
for such cities and towns, by the municipal councils or otherwise.
The modern idea of dealing with juvenile delinquents is not to
treat them as ordinary criminals, but as mischievous children, and
to keep them from associating with criminals and place them un-
der such restraint and observation as will tend to bring out their
better instincts and make them realize their duties to others. The
outstanding features of this new Act are the appointment and use
of probation officers who look after children in their homes, and to
whom the children report from time to time. The visitations of
these oflBcers to the homes of the chidren never fail to have a bene-
ficial effect all around, since the parents are made to realize their
true responsibilities. I^ext, the establishment of detention homes,
where children are sent who are apprehended for offences ; no gaol,
lock-up or police cells. The Juvenile Court is held away from
the neighbourhood of the Police Court, and if possible in the de-
tention home, and the proceedings of the Court are as informal as
circumstances will permit, having a due regard for the proper
administration of justice. Parents are notified to attend the Court
and their duties are fully impressed upon them. And last, but by
no means least, are the provisions of sec. 29 of the Act which pre-
scribes punishment for what is known as * contributory ' delin-
quency. Any person who knowingly, or wilfully, encourages, aids.
PUNISHMENT FOR CONTKIBUTING TO DELINQUENCY. 455
abets or connives at the commission by a child of a delinquency, or
who knowingly or wilfully does any act producing, promoting or
contributing to a child's being or becoming a juvenile delinquent,
whether or not such person is the parent or guardian of the child,
or who being the parent or guardian of the child, and being able
to do so, wilfully neglects to do that which would directly tend to
prevent a child's being or becoming a juvenile delinquent, is liable
upon summary conviction before a Juvenile Court, or justice, to a
fine not exceeding $500, or to imprisonment for a period not ex-
ceeding one year, or to both fine and imprisonment.
A ' delinquency ' is defined by the Act to mean and include any
offence under the Criminal Code, or of any Dominion or Pro-
vincial statute, or of any by-law or ordinance of any munici-
pality, for the violation of which punishment by fine or imprison-
ment may be awarded.
As to the detention of the child pending the hearing of a de-
linquency charge against the parent, see Re Stenhouse, 21 C. C. C.
183.
A careful perusal of this section will indicate how far reach-
ing are its provisions, and what a salutary influence can be exer-
cised over both men and women who are responsible for children
going wrong.
The Trial of Juvenile Offenders for Indictable
Offences.
Part XVII. of the Code deals exclusively with the mode and
manner of dealing with juvenile offenders charged with theft or
any offence " punishable as theft " : sees. 802, 805, and, apparently,
it does not apply in case of any other offences. As it is hoped the
day is not far distant when this obsolete legislation will be re-
pealed and will have substituted for it the enlightened and pro-
gressive provisions contained in " The Juvenile Delinquents'
Act of 1908," further reference to this part of the Code is not
thought necessary.
Still, until the law is so altered, magistrates and justices, in
places where there are no Juvenile Courts established under the
present law, will have to apply the provisions of this Part when
juveniles come before them charged with theft or any offence
" punishable as theft."
456 HABEAS CORPUS.
CHAPTER Xll.
Habeas Corpus.
All that is attempted to be given in this chapter is a summary
of the law and general principles relating to this important
matter of criminal procedure. The space at our command will not
admit of more detail, and the reader must look elsewhere for fur-
ther enlightenment.
Blackstone says, at p. 129, Vol. III. : " The writ of habeas
corpus, the most celebrated writ in the English law," and " The
oppression of an obscure individual gave birth to the famous
Habeas Corpus Act, 31 Car. II, c. 2 (1&79), which is frequently
considered as another Magna Oharta of the Kingdom, and by con-
sequence and analogy has also in subsequent times reduced the
general method of proceeding on these writs (though not within
the reach of that statute, but issuing merely at the common law)
to the true standard of law and liberty."
Various kinds of these write were made use of at Westminster.
The writs that are of modern use are: (1) the writ of habeas
corpus ad testificandum, a process issued for the purpose of re-
moving a prisoner from a prison or gaol to prosecute or testify
in Court as a witness. This writ is superseded in criminal mat-
ters by the provisions of s. 977 of the Code. This section provides
that, where the attendance of any person confined in any prison in
Canada is required in any Court of criminal jurisdiction in any
case cognizable therein by indictment, the Court before whom any
such person is required to attend, or any Judge of such Court
or of any superior Court, or County Oourt, or chairman of General
Sessions, may before or during any such term or sittings at which
such person is required, make an order upon the warden, or
gaoler of the prison, or upon the sheriff or other person having the
custody of such prisoner, to either deliver the prisoner to the
person named in the order or for himself to convey such prisoner
to such place.
(2) Habeas Corpus ad Subjiciendum.
The Avrit with which we are concerned is described by Black-
stone as " the great and efficacious writ in all matters of illegal
confinement, that of habeas corpus ad subjiciendum, directed to
HABEAS CORPUS ACT^ 31 CAR, II, C. 2. 457
the person detaining another and commanding him to produce the
body of the prisoner with the day and cause of his caption and
detention to do, submit to, and receive whatsoever the Judge or
Court awarding such writ shall consider in that behalf. This is a
high prerogative writ, and therefore by the common law issuing
out of the Court of King's Bench not only in term time, but also
during the vacation by a fiat from the Chief Justice or any other
of the Judges, and running into all parts of the King's Domin-
ions, for the King is entitled at all times to have an account why
the liberty of any of his subjects is restrained wherever, that re-
straint may be inflicted."
The Habeas Corpus Act, 31 Car. II, c. 2, applies only to per-
sons who are detained, or imprisoned for criminal or supposed
criminal offences. By proclamation in 1763 the criminal law of
England was introduced into Canada, and by the Quebec Act of
1774 the criminal law of England was to obtain to the exclusion
of every other criminal code which might have prevailed in
Canada before 1763.
Thns was introduced into Canada the Habeas Corpus Act,
31 Car. II. In the case of Anderson, the fugitive slave, it was
held that this writ could be applied for in England by a person con-
fined in Canada or any other of the colonies. The Judges of the
Queen's Bench held that the prerogative power had always been
inherent in the English Court in favour of British subjects where-
ever imprisoned except in a foreign country, and had never been
taken away by express statute. By statute (25 Vict.) passed by
the Houses of Parliament in England, the English Courts were
deprived of their extended jurisdiction over the colonies, when-
ever local Courts exist by which such a jurisdiction can be exer-
cised. The Habeas Corpus Act, 31 Car. II, c. 2, is in force all
over the British Dominions.
As the Habeas Corpus Act extended only to cases where per-
sons are imprisoned on criminal or supposed criminal charges,
the other cases were left to the operation of the common law. This
being found defective, by the Statute 56 Geo. Ill, c. 100, the
writ was extended to all other cases in England. Under this Act
any person c-onfined or restrained of his liberty (otherwise than
for criminal charges and except persons imprisoned under a judg-
ment or decree for debt) may apply to any Judge of the Common
Law Courts for a habeas corpus on shewing by affidavit that there
ia a reasonable and probable ground for complaint.
458 HABEAS CORPUS ACTS IN THE PROVINCES.
The provisions of this latter Act, 56 Geo. Ill, c. 100 (1816),
have been extended by special statutes in several of the Provinces
of Canada. In Ontario by chapter 84 of the Bevieed Statutes of
1914, the Ontario Habeas Corpus Act. In Nova Scotia by R. S.
N. S. (1900), c. 181, "Securing the liberty of the subject." In
New Brunswick by R. S. N. B. (1903), c. 133.
In Manitoba and in the North-West and Yukon Territories
and the Provinces of Saskatchewan and Alberta the laws of Eng-
land as they existed on the 15th day of July, 1870, in so far as
the same are applicable, relating to civil and criminal rights, are
in force, except where the same have been altered or repealed by
the legislatures of these Provinces or of the Territories. Conse-
quently the Act, 56 Geo. Ill, c. 100, is in force in these Pro-
vinces, and special legislation is not necessary for its promulga-
tion. This law is also in force in British Columbia, since the
laws of England, both civil and criminal, as they existed on the
19th day of November, 1858, in so far as they have not been
repealed by any Act or Ordinance passed in that Province, or by
the Parliament of Canada relating to criminal matters, are the
laws of British Columbia.
The Act, c. 45, 29 & 30 Vic, of the old Province of Canada,
which then included Ontario and Quebec, extended the Statute
of Geo. III. into these two Provinces, thus providing a remedy
by habeas corpus in matters other than criminal matters arising
under Provincial laws. The Act, 29 & 30 Vic, c. 45, is embodied
in Quebec law in the Revised Statutes of Lower Canada (1861).
c. 95, and in Ontario in the Habeas Corpus Act of 1909, c. 51.
The Habeas Corpus Act of Canada (1866), 45 Vic, c 45, which
applies only to Tipper Canada, is still in force in Ontario in all
criminal matters.
Supreme Court of Canada.
By s. 62 of the Supreme Court Act every Judge of the Court
shall, except in matters arising out of any claim for extradition
Tinder any treaty, have concurrent jurisdiction with the Courts
or Judges of the several Provinces to issue the writ of habeas
corpus ad subjiciendum for the purpose of an inquiry into the
cause of commitment in any criminal case under any Act of the
Parliament of Canada. If the Judge refuses the writ or remands
the prisoner, an appeal shall lie to the Court. See In re Trepan-
ier, 12 S. C. R. Ill, and In re Boucher, Cassells' Digest, 325. The
right to issue a writ of habeas corpus being limited by sec. 51
JURISDICTION OF SUPREME COURT OF CANADA. 459
(now 62) of the Supreme and Exchequer Court Act to "an inquiry
into the cause of commitment in any criminal case under any Act
of the Parliament of Canada," such writ cannot be issued in a
case of murder, which is a case at common law." In re Sproule,
12 S. C. E. 140.
Where a Judge in a province has the right to issue a writ of
habeas corpus returnable in term, as well as in vacation, a Judge
of the Supreme Court might make the writ he authorises return-
able in said Court in term, as well as immediately. In re Sproule,
12 S. C. E. 140; see Be Placide Richard, infra.
At common law the Judges of the Superior Courts can order
writs of habeas corpus ad subjiciendum in vacation returnable
either in term or vacation. Re Hawlcins, 3 P. E. 239.
The section of the Supreme Court Act conferring jurisdiction
in habeas corpus does not constitute the individual Judges of the
Supreme Court separate and independent Courts, or confer on
the Judges jurisdiction outside of and independent of the Court,
and obedience to a writ issued under the said section cannot be
enforced by the Judge, but by the Court, which alone can issue an
attachment for contempt in not obeying its process. In re Sproule,
supra.
This section of the Supreme Court Act gives to a Judge of the
Supreme Court of Canada the power which the common and
statute law give to Judges of the superior Cburts in matters of
habeas corpus, but it does not constitute such Judge a Court of
Appeal with jurisdiction to avoid or reverse judgments of pro-
vincial Courts. R. V. White (1901), 4 C. C. C. 430, 31 S. C. E.
383.
The jurisdiction of a Judge of the Supreme Court in matters
of habeas corpus in any criminal case is limited to an inquiry into
the cause of imprisonment, as disclosed by the warrant of com-
mitment under any Act of Parliament. Girouard^ J., at p. 14, in
Ex parte MacBonald, (1896) 3 C. C. C. 10, 27 S. C. E. 683.
An application to the Supreme Court of Canada to fix a day
for hearing a motion to quash an appeal from an order refusing a
habeas corpus in an extradition matter was refused, the matter
being coram non judice since the Supreme and Exchequer
Court Act provides that " no appeal shall be allowed in any case
of proceedings for or upon a writ of habeas corpus arising out of
any claim for extradition made under any treaty." In re Lazier,
29 S. C. E. 630.
460 PRAOTICE^APFIDAVIT REQUIRED ON APPLICATION.
On application to a Judge of the Supreme Court of Canada
for a writ of habeas corptbs, he may refer the matter to the full
Court which has jurisdiction to hear and dispose of it. Re Pla-
cide Richard, (1907) 12 C. C. C. 204.
Practice and Procedure.
By s. 576 of the Code every Superior Court of criminal juris-
diction may make rules of Court for regulating in criminal mat-
ters the pleading, practice and procedure in the Courts in certain
subjects, including certiorari and habeas corpus. The Courts of
the majority of the Provinces have not made rules respecting
procedure in certiorari and habeas corpus, and, where there are
no such rules, it is usual to follow the English Crown Office
Eules (1906) ; Ontario, Nova Scotia and British Columbia have
rules of their own respecting certiorari. The Eules in use in Sas-
katchewan and Alberta are set forth post.
Affidavit Required on Application.
The writ of habeas corpus, whether at common law, or under
31 Car., does not issue as a matter of course in the first instance
upon application, but must be moved for on affidavit, and the
issue of the writ is entirely in the discretion of the Court.
In The Canadian Prisoners' Case, (1839) 5 M. & W. 32, the
Court said : " Before granting a habeas corpus to remove a person
in custody we must ascertain that an affidavit is not reasonably to
be expected from him. An affidavit is absoluteh'i necessary either
from the party who claims the writ, or from some other person,
so as to satisfy the Court that he is so coerced as to be unable to
make it." See also R. v. BlacTc, (1899) 8 C. C. C. 465.
It is discretionary with the Judge to whom the application is
made to receive an affidavit of a different kind, or one not sworn
to by the prisoner. Re Ross, 3 P. R. 301, 10 IT. C. L. J. 133,
and see Re A. B., (1905) 9 C. C. C. 390, infra.
Where the affidavit was not made by the prisoner and it was
shewn that he Avas a foreigner unable to speak or understand
English, the affidavit made by his solicitors was held sufficient,
as would also an affidavit made by any one on his behalf. R. v.
Rudland, Ex parte Koike, (1908) 14 C. C. 0. 22, and see R. v.
Mclvor, (1903) 7 C. C. C. 183.
A prisoner is not entitled to a habeas corpus under the Statute
of Charles, unless there be " a request made in writing by him
APPLICATION,, HOW MADE. 461
or anyone on his behalf, attested by two witnesses who are pre-
sent at the delivery of the same." In Be Carmichael, 1 0. L. J.
243.
The affidavit of the prisoner alleging an intrinsic fact con-
fessing and avoiding the return, but not directly contradicting
it, may be read on a motion for habeas corpus. R. v. Cavelier,
(1896) 11 M. R. 333, 1 C. C. C. 134.
Although upon the habeas corpus and the return thereof the
Court can judge of the sufficiency or insufficiency of the return
and commitment, as the case appears on the return, yet they can-
not upon the bare return of the habeas corpus give any judgment
without the record itself be removed by certiorari. Bacon's Ahr.
Habeas Corpus, B. 3.
Application-, How Made.
Under tbe Grown Office Eules, the application may be to the
Court or a Judge. If to the Court, it must be by motion for an
order, which if the Court so direct may be made absolute ex parte.
or the Court may grant an order nisi. If made to a Judge he
may order the writ to issue ex parte in the first instance, or may
direct a summons for the writ to issue.
No order for the issuing of a writ is to be granted where the
validity of any warrant, commitment, order, conviction, injunc-
tion or record shall be questioned unless at the time of moving a
copy thereof, verified by affidavit, be produced and handed to the
officer of the Court before the motion is made or the absence
thereof accounted for to the satisfaction of the Court. See B. C.
and N. S. Rules.
In all criminal cases the notice of application for habeas
corpus must be served upon the convicting justice or magistrate,,
and upon the Crown Attorney, or other functionary representing
the Attorney-General. It is essential that the notice should be
both addressed to and served upon the Attorney-General. The
service may be made upon the duly authorized representative of
the Attorney-General.
Under the old practice the application was made by way of
petition addressed to the Court to be appealed to or to any one
of the Judges thereof. The modern practice is to apply to the
Court or Judge by notice of motion in the first instance, or by
rule nisi. The practice is not uniform throughout the Provinces.
462 PRACTICE ON APPLICATION FOR HABEAS CORPUS.
With the notice of motion must be served copies of the affidavits
filed and the exhibits therein referred to.
The motion is to shew cause why a writ of habeas corpus
should not issue to the keeper of the gaol directing him to bring
before the Judge or Court the body of the prisoner detained in
his custody, or the order may dispense with the personal attend-
ance of the prisoner, and that the Court may cause to be done
thereupon what of right and according to law the Court shall see
fit to be done (and for a writ of certiorari in aid thereof). No
security is required from a prisoner applying for habeas corpus or
a writ of certiorari in aid thereof. Security is required on an
application for certiorari alone.
The affidavit by the prisoner must disclose grounds upon which
the Court can exercise its discretion, unless it is shewn that he is
so coerced as to be unable to make an affidavit; in this event the
affidavit may be made by the husband or wife of the prisoner, or
by his agent or friend.
It has been supposed that a mere stranger, who does not exhibit
any right or authority to act or represent the prisoner, cannot
apply.
But, in the celebrated recent case, Be Thaw (No. 2), 22 C. C.
C. 3, it was held by Hutchinson^ J., following the Hottentot
Venus case, 13 East 195, and 10 Halsbury, p. 57, that any person is
entitled to obtain a writ of habeas corpus for the purpose of liber-
ating another from an illegal imprisonment.
If it sufficiently appears that the prisoner is suffering involun-
tary and wrongful restraint, no express authority from him need
be shewn.
With the affidavit should be exhibited a copy of the warrant
of detention, or the affidavit may set out that a copy has been de-
manded in writing and refused ; this demand must be signed either
by the prisoner or some one acting in his behalf.
The demand for the copy of the writ should be served person-
ally upon the gaoler if he is in the prison, otherwise a service upon
his deputy or a turnkey might be held ineffective.
The affidavit should be entitled in the Court applied to, and
should set out clearly and concisely in paragraphs all the facts
which the applicant considers necessary to establish his right to be
released.
If there is a defect apparent upon the face of the commitment
it will be sufficient to confine the affidavit to verifying the copy
MAEBIED WOMEN AND MINORS. 463
of the warrant of commitment and denying the guilt of the pri-
soner set out in the warrant. The affidavit must not be sworn
before the solicitor for the applicant or the prosecutor.
On the argument of an order nisi for a writ of habeas corpus,
the Court may in its discretion direct an order to be drawn up for
the prisoner's discharge instead of waiting for the issue or return
of the writ. When the prisoner is brought up on habeas corpus his
counsel shall be first heard, then the counsel for the Crown and
then counsel for the prisoner in reply. If the writ is disobeyed
application may be made to the Court on an affidavit of service
for an attachment, or an application may be made to the Judge
in Chambers for a warrant for the apprehension of the person in
contempt to be brought before him or some other Judge, to be
bound over to appear in Court to answer for his contempt or to be
committed to prison for want of bail.
Mabeied Women and Minors.
A minor, or a married woman is amenable to the criminal law,
and if convicted, or committed before conviction, is entitled to
have the validity of the procedure tested under the provisions of a
writ of habeas corpus. Hall, J., at p. 391, in Re A. B., (1905)
9 C. C. C. 390.
The person making the affidavit for the writ stands towards
the Court only in the relation of a witness and, if the informa-
tion which he supplies has the character of credibility, the Court
is bound to act upon it, just as it would accept the testimony
of the same person in an ordinary civil action or criminal trial.
Ibid. p. 392.
Direction and Service of the Writ.
The writ should be directed to the person in whose custody the
applicant is actually detained, whether he is an officer concerned
in the public administration of justice, or a private individual who,
under any pretence (such as that the person detained is a lunatic)
detains another against his will.
A writ of habeas corpus directed disjunctively to the sheriff, or
gaoler, was held to be bad. If a person is taken by a warrant of
the sheriff then the writ must be directed to him, for in contempla-
tion of the law the prisoner is in his custody and the writ must be
returned with the body. If on the other hand the prisoner has
been immediately committed to the custody of the gaoler, as in all
criminal cases, it must be directed to him.
464 DIRECTION AND SERVICE OF THE WRIT.
By the provisions of the Statute of Car. II, sec. 2, the person
to whom the writ is directed is bound to return the body of the
prisoner within the space of three days if within twenty miles, in
ten days if within one hundred miles, and within twenty days
for any greater distance. If the person refuses to deliver the
body he is liable for the first offence to a penalty of £100, and for
the second offence to £200.
The person to whom a habeas corpus is directed is not bound
to bring up one in his custody who is charged with treason or
felony plainly expressed in the warrant of commitment, or in
prison for any civil cause of action, or in execution upon process
after judgment from any Superior Court of competent jurisdiction.
The writ must be subscribed by the Judge awarding it: B. v.
Roddam, Cowp. 672, and marked in the margin "Per Statutum
trisecimo primo Carli Secundi RegisJ' The Judge should sign in
the margin. It should also be signed by the oflBcer issuing it. E.
V. St. Clair, 3 C. C. C. 551, and it must be sealed by the seal of the
Court. Objections cannot be raised after the return. U. 8. v.
Browne, 11 C. C. C. 167.
The original writ must be served by delivering it to the person
to whom it is directed and who has custody of the prisoner. The
service must be personal if at all possible. If the writ be directed
to the gaoler and he is not present in the gaol, then his deputy,
or some one in authority, may be served. If directed to some
other public oflBcial, and personal service is impossible, then the
original may be left with a servant or agent of this oflBcial, at
the place where the prisoner is confined or restrained.
If the writ is directed to more than one person the original
shall be delivered to or left with the gaoler, or other principal
person, and copies served or left on each of the other persons
in the same manner as the writ. The service should be made in
such a way that the person to whom the writ is delivered should
understand its nature. And when the gaoler is in the gaol pains
should be taken to effect personal service upon him.
It is essential that the gaoler should have the original writ
since he is bound to produce the same with his return. Re Thaw
(No. 3), 22 C. C. C. 8.
The attendance of the prisoner at the argument may be dis-
pensed with. The consent of his solicitor to such non-attendance
is required to be endorsed on the writ and signed by him.
Objections to the writ must be taken by way of substantive
motion to set it aside, and not upon the motion for the discharge
RETURN OF THE WRIT OF HABEAS CORPUS. 465
of the prisoner upon the return. If the writ has been obtained
on fraudulent misrepresentation the Court will quash it on motion.
As to the practice in Prince Edward Island, see Re McMurrer
(No. 1), 18 C. C. C. 41.
Return of a Writ of Habeas Corpus.
The return should be clear and unambiguous, and it will be
held bad and evasive if doubtful points of the return are not
cleared up by affidavit. R. v. Roberts, 2 F. & F. 272.
Upon a return to a writ of habeas corpus affidavits are not
admissible to shew that the offence was not committed within
the justice's jurisdiction. Ex parte Smith, 27 L. J. M. C. 186.
The return must shew by whom and for what cause the prisoner
was committed. And it will not be held invalid by mere want of
form, if it discloses a good cause of detainer. It should always
shew a good cause of detainer and in some cases the proof. Nash's
Case, 4 B. & Aid. 295.
When the body is returned by the officer to whom the writ is
directed, he is to certify the day and cause of the caption and de-
tainer, as in case of an excuse for not bringing the individual.
Bac. Ab. Hab. Corp. (B. 9).
Where the party is in custody under the sentence of a Court
of competent jurisdiction to try his offence, it is sufficient to re-
turn that fact without stating the particulars of the original charge
against him (1 East. 306) ; nor, if the commitment were made
out by order of a Court of record, is it necessary to set it forth
in its precise language, as must be done when it is merely under
the hand of an individual magistrate.
Where a gaoler made a return stating that he held the prisoners
under a warrant of committal annexed, but was unable to produce
them for want of means to pay their conveyance, the Clerk of the
Court endorsed the return "returned and filed." The Judge al-
lowed these papers to be withdrawn so another return could be
made — afterwards the prisoners and the writ were produced with
the above return annexed. Held, (1) that the first return was in
fact no return, merely alleging matters of excuse for not making
a return; (2) that a return cannot be filed until it has been read
before the Judge, and that the second return was authorized. R.
V. Reno, 4 P. P. 281.
C.C.P.— 30
466 WHAT THE EETUEN SHOULD CONTAIN.
Where a prisoner was committed to prison upon a warrant
not properly sealed, it was held to be a good return to a writ of
habeas corpus, that a second warrant duly sealed had been lodged
for his detention. Re Phipps, 11 W. R. 730, Q. B.
Where a prisoner was lodged in gaol under a bad warrant of
commitment, even in the nature of a conviction, a good warrant of
commitment subsequently delivered to the gaoler, but before the
rule for habeas corpus has been obtained, is a good answer to
such rule. Ex parte Cross, 26 L. J. M. C. 201, and see Ex parte
Smith, 27 L. J. M. C. 186, and R. v. Morgan, (1901) 5 C. C.
C. 63, 272.
An attachment may be granted for making an insufficient re-
turn to the first writ of habeas corpus without issuing an alias and
a pluries writ. R. v. Winton, 5 T. E. 89.
The truth of a return in criminal cases, it has been said,
cannot be controverted. 2 Hawk. P. C. 113, and see R. v. Dunn,
12 A. & E. 599, supra, p. 319.
On habeas corpus, bringing up a party committed by justices
for not finding sureties of the peace, the Court will not hear affi-
davits controverting the facts alleged in the articles of the peace.
R. V. Dunn, 12 A. & E. 599. And the Statute, 56 Geo. Ill, ch.
100, sec. 3, does not affect the practice in this respect. Ibid.
On a habeas corpus, the Warden of the Fleet set out in his re-
turn an order of the Master of the EoUs which stated that the
prisoner, being brought to the bar of that Court, was committed
for contempt. It was held that the prisoner could not be allowed
to contradict by affidavit the statement that he was brought to the
bar of the Court. In re Clarke, 6 Jur. 757.
At all events the return prima facie imports verity, and until
it is impeached need not be supported by affidavits or otherwise.
Leonard Watson's Case, 9 A. & E. 731.
A return may be impeached and its truth inquired into, and
it may be controverted by affidavits. If the return be false, by
an action at the suit of the prisoner, or by indictment. Anon.
Salk. 349. But an attachment will not be granted unless, perhaps,
the return be wilfully false.
Upon the return the prisoner's counsel may move to file it and
to have the prisoner called into Court and the return read, after
which the counsel may argue for the prisoner's discharge.
The King's Bench may remand the prisoner to the same gaol
from whence he came and order him to be brought up from time
ADMITTING TO BAIL ON REMAND. 467
to time until they have determined to discharge or detain him:
Bac. Ab. Hab. Corp. 13; or may during a reasonable time bail
the prisoner de die in diem until they have come to a decision.
Ibid and R. v. Bethel, 5 Mod. 19.
If a corpus delecti appear on the depositions (which the Court
always look to) the Court will remand the prisoner though the
warrant of commitment be informal. R. v. Horner, 1 Leach C.
C. 305; R. V. Marhs, 3 East 157; Ex parte Krans, 1 B. & C. 258.
Recognizance on Remand.
If the Court or a Judge determine that the party shall be re-
leased from custody pending his trial, he must thereupon enter
into a recognizance to appear on his trial, and the writ, the return
and recognizance must be certified into the Court where the trial
is to take place. 31 Car. II, ch. 2, sec. 3.
The rule is, where the offence is prima facie great, to require
good and ample bail. Moderation nevertheless is to be observed,
and such bail only is to be required as the party is able to procure,
for otherwise the allowance of bail would be a mere colour for
imprisoning the party on the charge. R. v. Wilkes, 2 Wils. at p.
159. The Court will not increase the amount of the bail after it
has once been taken. R. v. Salter, 2 Chits. Eep. 109.
In delivering the judgment of the Privy Council in United
States V. Gaynor, (1905) 9 C. C. C. 205, the Lord Chancellor, at
p. 231, says: "Their Lordships do not mean to suggest that the
writ of habeas corpus is not applicable when there is a prelimin-
ary proceeding. Each case must depend upon its own merits.
But, where a prisoner is brought before a competent tribunal and
is charged with an extradition offence and remanded for the
express purpose of affording the prosecution the opportunity of
bringing forward the evidence by which that accusation is to be
supported, if, in such a case, upon a writ of habeas corpus a
learned Judge treats the remand as a nullity and proceeds to ad-
judicate upon the case as though the whole evidence were before
him, it would paralyze the administration of justice and render it
impossible for the proceedings in extradition to be effective."
It is not essential in Quebec that a writ of habeas corpus under
sec. 16 of the Extradition Act should be returnable in Court, and
it is sufficient that the writ is returnable before a Judge sitting
in Chambers, if the latter practice is authorized under the general
468 PRACTICE IN RETURNING WRIT ^AMENDING THE RETURN.
law in force in the Province. Re Oaynor and Greene (No. 8),
9 C. C. C. 496.
If the return to a writ of habeas corpus shews a proper war-
/ rant, or other legal cause for detention, although dated subsequent
to the writ to which the return is made, the prisoner must be re-
manded to custody. R. v. Walton, (1905) 10 C. C. C. 269.
The proper practice in the return of a writ of habeas corpus
appears to be to bring it into Court and read the return, where-
upon, and not before, it is to be filed by the proper oflBcer. Re
Reno and Anderson, 4 P. R. 281, at 291; Re Murphy, (1894) 2 C.
C. C. 562.
The person to whom a writ of habeas corpus is directed must
return the original warrant of commitment and not a copy. In
Re Carmichael, 10 U. C. L. J. 325. The decision in Re Ross, 3
P. R. 301, to the contrary was there disapproved.
But in R. V. Skinner, 9 C. C. C. 558, a Nova Scotia case. Re
Ross, supra, was followed. ,
On the return of a writ of habeas corpus in an extradition pro-
ceeding the Judge has no power to review the decision of the extra-
dition commissioner on the ground that it is against the weight
of evidence. Ex parte Leitz (No. 1), (1899) 3 C. C. C. 54.
Amending Return.
The Court has power to permit the return of the writ to be
amended and to allow it to be taken off the files in order that
the amendment may be made. Leonard Watson's Case, 9 A. & E.
731 ; R. V. Reno and Anderson, 4 P. R. 281 ; Meredith, C.J., at p.
567, in Re Murphy, supra. This amendment may be made without
the consent of the prisoner. Re Clarice, 6 Jur. 757, and see Re
Royston, (1909) 15 C. C. C. 96, and Re Leblanc, 22 C. C. C. 208.
Where it appears on the return of a certiorari that the con-
victed person is in close custody, the Court may order a habeas
corpus, and hear together the motion to quash the conviction, and
the motion for the prisoner's discharge. R. v. Spooner, (1900) 4
C. C. C. 209.
Where the magistrate is directed by an order to return the
proceedings relating to the imprisonment, and returns on sucn
order the information, depositions and conviction, such conviction
is not by reason thereof brought under the jurisdiction of the
Superior Court for the purpose of a motion to quash the same.
R. V. MacDonald (No. 2), (1902) 5 C. C. C. 279.
AMENDING THE EETUBN, 469
Until the conviction is brought into the Court by a return to
a writ of certiorari under the hand and seal and the judicial officer
to whom it is directed requiring it to be so certified, the Court
has no power to quash it. It is the return in due form which gives
the necessary jurisdiction to revise the conviction. Meagher, J.,
at p. 299, ibid. , ,
On this point, however, see B. v. Ames, 10 C. C. C. 52, and
other cases noted on page 497, post.
The decision of a County Court or Court of General Sessions
on appeal from a summary conviction is final and conclusive, and
a superior Court has no jurisdiction to interfere by habeas corpus.
R. V. Beamish, (1901) 5 C. C. C. 388.
On habeas corpus proceedings all the facts can be brought be-
fore the Judge that may become necessary or important for him to
know so as to enable him to come to a determination as to the
legality of the imprisonment. Hannington, J., at p. 194, in Ex
parte Fitzpatrich, (1893) 5 C. C. C. 191.
Where the conviction only was lodged with the gaoler, and
no warrant of commitment, upon habeas corpus the Judge may
properly allow the further detention of the prisoner for a limited
time until a warrant in due form can be obtained from the com-
mitting magistrate. E. v. Morgan, (1901) 5 C. C. C. 63; affirmed
on appeal, 5 C. C. C. 272. See, also, U. v. Mitchell, 19 C. C. C. 113.
Where a return to an order in the nature of a writ of haheas
corfms specifies two warrants of commitment for the same offence
and there is nothing in either the second warrant, or in the return,
shewing that the second warrant was issued in substitution for the
first, or that the justice intended to amend the first warrant, which
was irregular and bad, the return was held to be bad and the pri-
soner discharged. R. v. Yenoi, (1903) 6 C. C. C. 209.
" I think more care should be taken in making a return to an
order in the nature of a habeas corpus, and, in a case like this, it
should have been carefully prepared by a solicitor." Ritchie, J.,
at p. 212, ibid.
A return by the sheriff disclosed two warrants setting out the
conviction and sentence, and the affirmation thereof by the Court
of error, is a good and sufficient return. If actually written by
him or under his direction the return need not be signed by the
sheriff. In re Sproule, 12 S. C. R. 140.
470 HABEAS CORPUS IN EXTRADITION CASES.
Extradition, Inqmry as to Evidence.
On motion for habeas corpus, or for the discharge of the pri-
soner held for extradition, the Court applied to cannot receive or
consider any evidence except that upon which the prisoner stands
committed.
Neither can the Court inquire into the weight of evidence or
its suflBciency to sustain the charge. Re Cohen, (1904) 8 C. C. C.
251; and see In re Parker, (1890) 19 0. K. 612; Re Gates, (1904)
8 C. C. C. 249; R. v. Governor Eolloway Prison, (1902) 71 L. J.
K. B. 935; Ex parte Huguet, (1893) 29 L. T. 41; Re Arton,
[1896] 1 Q. B. 509. But see Re McTier, 17 C. C. C. 80.
Where a person has been arrested illegally he cannot, while
still under such illegal arrest, be legally held on a valid warrant.
Before a prisoner can be legally arrested on a new charge, the
first arrest being illegal, he must first be liberated.
While habeas corpus proceedings are pending a warrant of ar-
rest cannot be served upon a prisoner, such prisoner being deemed
to be under the protection of the Court charged with the habeas
corpus proceedings. Ex parte Cohen, (1902) 8 C. C. C. 312.
It has since been expressly held to the contrary. Re Webber,
19 C. C. C. 515.
An arrest in Canada for extradition cannot legally be made
upon a mere telegraphic or other request, from the authorities of
a foreign country, without a warrant issued in Canada. Re Dichey
(No. 1), (1904) 8 C. C. C. 318.
But a warrant wOl be good if based on an information sworn
on belief in the telegram. Re Webber supra.
Where a person has been committed for extradition the Coui-t
on habeas corpus proceedings may revise the commissioner's deci-
sion on the question of whether or not there was legal and com-
petent evidence tending to prove the commission of the crime,
but it will not review the commissioner's decision as to the suffi-
ciency of the evidence to justify the conmiittal. Ex parte Fein-
berg, (1901) 4 C. C. C. 270; Re Darracq., 19 C. C. C. 483; Re
O'Neill, 19 C. C. C. 410. See also U. S. v. Webber (No. 1), 20
C. C. C. 1 ; U. S. V. Webber (No. 2), lb. 6.
An information leading to the issue of a warrant of arrest
in extradition is insufficient if made upon information and belief
only, without disclosing the facts upon which the informant's be-
lief is founded. Re Dickey (No. 2), (1904) 8 C. C. C. 321.
HABEAS COKPUS NOT AN APPEAL. 471
Unless evidence taken before the extradition commissioner of
an alleged confession by the accused is clearly inadmissible, a Judge
hearing a motion for habeas corpus should not discharge the pri-
soner upon the ground of the inadmissibility of such evidence. Be
Lewis, (1904) 9 C. 0. C. 233.
Discharge without Actual Issue of Writ.
A rule to quash a conviction may in the first instance be to
shew cause why a writ of habeas corptis should not issue "and
why, in the event of the rule being made absolute, the prisoner
should not be discharged out of custody without the issuing of the
said writ and without his being brought before the Court." The
rule may at the same time ask for a writ of certiorari as well as of
habeas corpus. R. v. Collins, 5 M. E. 136. The Statute 29 and
30 Vict., ch. 45 (Canada), had in view and recognized the right
of every man committed on a criminal charge to have the opinioa
of a Judge of a Superior Court upon the cause of his commitment
by an inferior jurisdiction. R. v. Hosier, 4 P. E. 64.
Habeas Gorpus is not an Appeal.
The Judge acting under a writ of habeas corpus examines
whether the committing magistrate has jurisdiction, whether the
committal is legal and whether any crime known to the law is
alleged to have been committed, but he is not called upon to
determine whether the committing magistrate's decision is in ^^
accordance with the evidence, or is proper or improper on the
merits of the case. The proceeding is not an appeal against the
magistrate's decision, but is an investigation as to whether he has
power or jurisdiction to act, whether the commitment is legal and
whether any offence known to the law is charged, and if the magis-
trate had the necessary power or jurisdiction its exercise will not
be inquired into. Wurtele, J., at p. 561, in R. v. Gillespie, (1898)
1 0. C. C. 551. .
Decisions of County Judges* Criminal Court.
The County Judges' Criminal Court is not an inferior Court
and its decisions and proceedings are not subject to review on
habeas corpus. R. v. BurJce, (1898) 1 C. CL C. 539, and see B.
V. Kavanagh, (1902) 5 C. C. C. 507.
''If any proposition is conclusively established by authorities
having the support of the soundest reasons, it is, that after a con-
472 DECISIONS OF COUNTY JUDGES' CRIMINAL COURT.
viction for felony by a Oourt having general jurisdiction of the
offence charged, a habeas corpus is an inappropriate remedy; the
proper course to be adopted in such a case being, viz., a writ of
error." Strong, J., at p. 204, in Re Sproule, 12 S. C. K. 140.
In R. V. Murray, (1897) 1 C. 0. C. 452, the Ontario Court of
Appeal held that the County Judge's Criminal Court was a Court
of Eecord and, after a conviction by such a Court having general
jurisdiction over the offence charged, the proceedings are review-
able only under a writ of error and cannot be the subject of investi-
gation under a writ of habeas corpus. And see R. v. St. Denis
(1875) 8 P. E. 16; R. v. Goodman, (1883) 2 0. E. 468.
A Court of one province has no jurisdiction to direct an in-
quiry before a justice or a Judge of another province. R. v.
Defri^s, (1894) 1 C. C. C. 207, 25 0. E. 645.
Where the warrant of arrest exhibited in the return to a habeas
corpus shews on its face the magistrate's jurisdiction, affidavits
are not admissible to controvert this fact if the offence charged was
a criminal one. Ibid. But see R. v. Cavelier, 1 C. C. C. 134, where
affidavits were received to shew that the commitment took place
on a Sunday.
Habeas Corpus on Magistrate's Decision.
A police magistrate trying a prisoner with his own consent
under sec. 777 of the Code is not a " Court of Eecord " within the
meaning of the Ontario Habeas Corpus Act, and habeas corpus
will lie to quash a commitment made by such a magistrate. R. v.
Gibson, (1898) 2 C. C. C. 302, and see R. v. St. Clair, (1909) 3
C. C. C. 551, 27 A. B. 308, and R. v. Johnson, 19 C. C. C. 203,
also R. V. Leschinski, 17 C. C. C. 199. But see R. v. McEwen,
(1908) 13 C. C. C. 346, where it was held by Cameron, J., that
habeas corpus would not lie in such a case in Manitoba,
The Court has jurisdiction upon habeas corpus to examine into
the legality of a commitment for trial made by a justice npon a
criminal charge and, in a proper case, to order the discharge of
the accused. R. v. Weiss, 21 C. C. C. 438.
Prisoner's Discharge on Habeas Corpus.
The Court, as a condition precedent to a prisoner's discharge
on habeas corpus proceedings, imposed the terms that he should
undertake that no action shall be brought at law against any
person in respect of the proceedings taken against him which
DISCHAEGE OF PRISONER ON HABEAS CORPUS. 473
w ~
resulted in the conviction and his imprisonment thereunder.
B. \. Horton, (1897) 3 C. 0. C. 84, and see Ex parte Hill, 3 C.
& P. 225.
Where a prisoner is discharged upon habeas corpus merely by
reason of a defect in the commitment, or for lack of jurisdiction ^
in the committing magistrate, such discharge is not a bar to the
prisoner's re-arrest and trial before a competent jurisdiction in re-
spect of the same charge. R. v. Weiss, supra.
After citing Attorney-Oeneral for Hong Kong v. KwoTc, A.
Sing., L. E. 5 P. C. App. 201, Wurtele, J., in Ex parte Seitz,
(1899) 3 C. C. C. 137, at page 131, proceeds: "The rule, there-
fore, is that, when a prisoner has been discharged upon the merits
of the charge laid against him, when the conviction or order of
detention founded on the charge is set aside as unfounded in law,
the prisoner thus discharged cannot be lawfully arrested and im-
prisoned again for the same offence upon the same state of facts,
but that, when the prisoner is discharged merely by reason of a
defect in the commitment, or in consequence of the want or excess
of jurisdiction in the committing Court, or in the committing
magistrate, he can be again arrested and tried for the same cause
before a competent Court, or a competent magistrate."
The Court cannot on a \vrit of habeas corpus revise on its
merits the decision of the Judge who has made the conviction, or
adjudge on the culpability of the petitioner. E. v. Bougie, (1899)
3 C. C. C. 487.
Where there has been a commitment under an extradition war-
rant, the Court, on habeas corpus proceedings, is not justified in
referring to the depositions returned and inferring therefrom facts
material to the offence if the warrant of commitment is in itself
defective in omitting to recite a finding of such fact. Re Murphy,
2 C. C. C. 662.
A person who is charged under a wrong name and who pleads
without objecting to the same is not entitled, after conviction, to
be released upon habeas corpus on the ground that she is not
the person designated in the commitment. Ex parte Corrigan,
(1899) 2 C. C. C. 591.
The discharge of the prisoner from custody on habeas corpus
does not amount to a quashing of the conviction. Hunter v. Gil-
Uson, 7 0. E. 735.
As to costs when prisoner discharged on habeas corpus in Nova
Scotia, see In re Murphy, 28 N". S. E. 196.
474 APPLICATIONS TO SUCCESSIVE JUDGES.
In discharging a prisoner under habeas corpus proceedings
under ch. 181, E. S. Nova Scotia, an order for protection in re-
spect of a civil action byi the prisoner can be made only in favour
of the gaoler and not in favour of the magistrate and prosecutor.
B. v. Keeping, (1901) 4 C. C. C. 494.
An order of a Judge made under Con, Stat., cap. 45, N. B.,
discharging a prisoner from custody, cannot be set aside or re-
vised by the Court. Ex parte Byrne, 23 N. B. R. 427.
The erroneous decision of a magistrate as to whether a default-
ing witness was bound to attend his Court without prepayment of
witness fees, and as to the liability of the witness to arrest, is not
open to review upon habeas corpus. R. v. Clements, (1901) 4 C.
C. C. 553.
An unreasonable delay in issuing a warrant of commitment
may be a ground for discharge on habeas corpus if the delay works
an injustice to the defendant. Ex parte Doherty, (1899) 5 C.
C. C. 94.
Applications to Successive Judges.
Where an application is made for the discharge of a prisoner
on habeas corpus and is refused, another application may be made
for the same purpose to another Judge in Chambers, and this
latter Judge may discharge the prisoner notwithstanding the
refusal of the first Judge applied to. R. v. Carter et al., (1902)
5 C. C. C. 401, and see R. v. HecJcman, (1902) 5 C. 0. C. 242,
and Re Piaget, 21 C. L. T. Occ. N. 536; Re Bowack, (1892) 2 B.
C. E. 222. This is the practice that prevails still in England and
in all the provinces of Canada except in Ontario and Quebec,
where provisions are made for appeals from judgments refusing to
discharge the applicant from habeas corpus. But there is no ap-
peal from an order discharging a prisoner under habeas corpus.
Cox & HaJces, (1890) 15 A. C. 506.
In Ontario a person is limited to the writ of habeas corpus to
be granted by any Judge of the High Court returnable before
himself, or another Judge in Chambers, or before a Divisional
Court, with a right of appeal. Re Harper, 23 0. E. 63.
An appeal in Ontario lies direct to the Court of Appeal and
not to a Divisional Court, from the order of a single Judge re-
manding a person to custody upon a return to a habeas corpus
issued under B. S. 0., c. 83. Re Harper, supra.
See p. 479 further as to appeals.
FUGITIVE OFFENDERS — BAIL IN EXTRADITION CASES. 475
Fugitive Offenders.
Extradition from Canada to another British possession will not
be confirmed on habeas corpus unless a prima facie case of guilt
is made out to the satisfaction of the Superior Court to which the
accused makes application for his discharge, irrespective of the
decision of the committing magistrate. The power under sec. 10
of the Fugitive Offenders' lAct is practically unlimited, and the
Court on habeas corpus may, in the exercise of its discretion, order
a discharge for any reason which appears to it to be satisfactory.
The C^urt has power to review the evidence upon which the com-
mitment for intercolonial extradition is founded. R. v. Delisle,
(1896) 5 0. 0. 0. 210.
See also R. v. Wishart, 18 C. C. C. 146.
Bail in Extradition Proceedings.
Under ordinaiy circumstances bail should not be granted to a
person committed for extradition. Where bail was granted pend-
ing an application for habeas corpus and afterwards the applica-
tion for habeas corpus was refused, the accused must surrender
himself into close custody before an application on his behalf for
an order to admit him to bail pending an appeal will be enter-
tained. Re Watts, (1903) 5 C. 0. 0. 538, and see Re Stem,
(1903) 7 0. C. C. 191; United States v. Weiss, (1904) 8 C. C.
C. 62.
A Judge of a Superior Court may grant bail after commitment
by an Extradition Commissioner, but this power should not be
exercised except under exceptional circumstances such as the life
of the fugitive being endangered by his close confinement. R. v.
Gaynor & Greene (No. 9), (1905) 9 C. C. C. 542.
No Costs by Stranger to Proceedings.
A person who has been made a respondent on an application
for habeas corpus in a criminal matter, and who does not appear
on the record as being the prosecutor, and who did not appear
on the application, was held in JTova Scotia as not liable for the
costs of the application on the discharge of the prisoner, although
the conviction appealed against was for stealing his property.
R. y. Bowers, (1900) 6 C. C. C. 100.
476 JUBISDICTION IN QUEBEC AND GENERALLY.
Jurisdiction iu Quebec.
In Quebec the Judges of the Superior Court of the district or
division where a person is imprisoned have jurisdiction in habeas
corpus proceedings, and can entertain a petition for the same.
Ex parte Goldsherry, (1905) 10 C. C. C. 392, and see Ex parte
Tremblay, post.
The Court of King's Bench sitting in Appeal either at Mont-
real or Quebec has jurisdiction to grant a writ of habeas corpus
on the application of a prisoner confined in any district within
the division for which the appeal sittings are being held. A
Superior Court Judge, sitting outside the limits of the judicial dis-
trict in which a prisoner is confined, has no jurisdiction in habeas
corpus proceedings when there is a Judge duly authorized within
such district. Ex pa^te Tremblay, (1902) 6 C. C. C. 147.
In Quebec when the issue of a writ of habeas corpus has been
refused, the application cannot be renewed before the Judge who
refused it or before any other Judge, unless new facts are stated ;
but application may be made anew to the Oourt of King's Bench
on its appeal side, at Montreal or Quebec, according as the dis-
trict where the appellant is confined is situated in the division
for which the Court eits in one or the other of those cities. The
Court of King's Bench on its appeal side has original jurisdiction
in matters of habeas corpus -svith respect to any person confined
in a district included in the one or the other of its two districts.
Per "WuRTELE^ J., in the same case at pp. 148, 149.
Jurisdiction Generally.
Where a magistrate, having no jurisdiction other than to hold
a preliminary inquiry, and commit the accused for trial, tried and
convicted the accused and committed him to gaol, on habeas cor-
pus proceedings for the release of the prisoner, an application on
behalf of the Grown for an order detaining the prisoner under sec.
1120 of the Code, for appearance on a preliminary inquiry, was
refused. R. v. Blucher, (1903) 7 C. C. C. 278.
A commitment by a tribunal of inferior jurisdiction may be
severable where imprisonment is ordered for a term and a further
term in default of payment of a fine and costs : the prisoner is not
entitled to his release on habeas corpus during the first term be-
cause of the costs not 'being ascertained in the commitment, but
DEFECTIVE WARRANTS OF CONVICTION. 477
leave will be reserved to him to re-apply at the expiration of the
first term. B. v. Carlisle, (1903) 7 C. O. C. 470, and see R. y,
Fraser, 20 0. C. C. 167.
If a warrant of commitment returned, on an application for
habeas corpus, as the cause of detention, is bad on its face in not
alleging a conviction, the conviction cannot be received or referred
to in order to support the warrant. " Had the warrant alleged
that there had been a conviction it may be that the conviction
could have been referred to in order to support it, even though
the offence were insufficiently stated in the warrant; but, as it
contains no such allegation, I must hold, in the absence of any
authority to the contrary, that the conviction cannot be referred
to." Scott, J., in B. v. Lalonde, (1895) 9 0. C.,C. 501,
By sec. 1121 of the Code it is provided that " No warrant of
commitment shall be held void byi reason of any defect therein,
provided it is therein alleged that the defendant has been con-
victed and there is a good and valid conviction to sustain the
same."
When a person had been arrested on a warrant of commitment
and requested the officer to allow him to spend Easter Sunday at
home and the officer complied with his request, trusting to the
prisoner surrendering himself under the warrant, and the prisoner
was re-arrested later on by the constable on the same warrant; on
a motion for Jiaheas corpus it was held that the facts disclosed
upon affidavit shewed that the escape at most was negligence on
the part of the officer, and that he did not contemplate a voluntary
abandonment of his prisoner, but negligently trusted to his pro-
mise to surrender and the re-arrest was upheld and the applica-
tion for the prisoner's discharge was dismissed. B. v. O'Hearon,
5 C. C. C. 531.
A Court of one province has no power on habeas corpus, or in
any other proceedings, to enquire into the validity or regularity
of any of the proceedings connected with the trial of an accused
person by the Court of another province. B. v. Wright, (1905)
10 0. 0. C. 461. Ex parte Stather, 25 N. B. R. 374, to the con-
trary effect, not followed. See also Be Seeleij, 14 C. C. C. 270, 41
S. C. E. 5, referred to at page 89 ante.
If the certificate of sentence to the penitentiarji is irregular
for omitting the date of sentence, leave may be given on habeas
corpus to return an amended certificate correcting the omission.
B. V. Wright, supra.
478 HABEAS CORPUS IN EXTRADITION CASES.
Where concurrent proceedings are taken by certiorari and
habeas corpus, and the writ of habeas corptLs is maintained upon
an objection appearing on the face of the commitment, the order
for costs against the prosecutor should not include the costs in-
curred upon the certiorari. R. v. Cote, (1903) 8 C. C. C. 393.
The right to habeas corpus in criminal matters does not depend
upon the legality or illegality of the original caption, but upon
the legality or illegality of the present detention. R. v. Whiteside,
,(1904) 8 C. C. C. 478.
Wliere a prisoner was arrested in the county of Ontario on a
warrant issued in and directed to the peace officers of the county
of Durham (Ont.) and the warrant had not been backed or
endorsed by a J. P. in the county of Ontario, this irregular arrest
is not a ground for the prisoner being released on habeas corpus.
Ibid.
The petition for a writ of habeas corpus may be refused if
the Court is satisfied that the writ would, if issued', be quashed
upon the petitioner's own shewing. United States v. Weiss,
(1904) 8 C. C. C. 62, and see 15 Am. & Eng. Encyc, 2nd ed., p.
140.
Extradition.
On a writ of habeas corpus issued before the committal of the
accused for extradition and before the conclusion of the inquiry
before the Commissioner, the powers of the Judge are limited to
determine whether the Commissioner has jurisdiction to make the
inquiry. Ex parte Green & Gaynor {No. 1), (1902) 7 C. C. C.
375.
When a prisoner is brought before an extradition Judge in
pursuance of a warrant of arrest and charged with an extraditable
offence, he may be remanded for the purpose of affording the pro-
secution an opportunity of adducing evidence. TJ. 8. v. Gaynor,
(1905) 9 C. C. C. 205.
In extradition, on a writ of habeas corpus, the Judge must see
in the first place whether the offence charged is or is not of a
political character, and whether the proceedings are regular and
justify the prisoner's committal for surrender. Re Levi, (1897)
1 0. "C. C. 74.
In the case of a fugitive who has been convicted, the Judge
does not examine the evidence given at his trial and must not
APPEAIvS FEOM OEDEES MADE ON HABEAS COEPUS. 479
revise the verdict of the jury ; his duty is to see if the offence is an
extradition crime, if the conviction after a regular trial has been
duly proved, and if the prisoner has been identified. Ihid.
See Re Stagg (No. 1), 20 0. C. O. 306, and Re Stagg (No. 2),
20 0. C. 0. 310, for illustrations of cases where extradition should
be refused for want of sufficient legal eviden(*e.
It is only necessary that actual identity between the person
held and the person named in the warrant be established. Re
Garlutt, (1891) 21 0. E. 179, 472.
Appeals from Orders Relating to Habeas Corpus.
Where a person has been discharged from custody by an order
of the High Court under a habeas corpus, the Cburt of Appeal
has no jurisdiction to entertain an appeal. Cox v. Hakes, (1890)
15 A. C. 506. This appeal was held by the House of Lords not to
be an appeal " in a criminal cause or matter " within sec. 47 of the
Judicature Act of 1893; but that no appeal lay to the Court of
Appeal under sec. 19 from an order discharging a prisoner under
a habeas corpus. So that it makes no difference whether the habeas
corpus had been issued respecting a criminal matter under the
Statute of Charles II, or under 56 Geo. Ill, c. 100.
Lord Herschell says, at p. 534 : "I am driven then to the con-
clusion that, where a person has been discharged by the High
Court under a writ of habeas corpus, the Ct)urt of Appeal has no
power effectually to interfere with the action of the Cburt below.
The judgment of the higher Court cannot in any wise affect the
discharge, or restore to custody the person liberated. It is in-
competent to give effect to its judgment and cannot undo that
which it holds to have been wrongly done by the order appealed
from."
And at page 522 the I^rd Chancellor (Halsbury) concludes
his judgment by saying : " It is the right of personal freedom in
this country which is in debate, and I for one should' be' very slow
to believe, except it was done by express legislation, that the policy
of centuries has been suddenly reversed, and that the right of
personal freedom is no longer to be determined summarily and
finally, but is to be subject to the delay and uncertainty of ordi-
nary litigation, so that the final determination upon that ques-
tion may only be arrived at by the last Court of Appeal."
Where the subject matter of the proceedings in respect of which
the application for habeas corpus was made is not criminal, the
480 APPEALS FEOM ORDEBS IN HABEAS CORPUS CASES.
Court of Appeal has jurisdiction to entertain an appeal from an
order refusing to grant a habeas corpus. Ex parte Woodhall, 20
Q. B. D. 832, per Lord Esher, M.R., at p. 837.
As to appeals in British Columbia from an order of a Judge
cancelling an order of deportation under the Immigration Act, see
Re Hoesson Rahim, 19 C, C. O. 394, overruling Ikezoya v. C. P.
R. Co., 12 B. C. E. 454.
As to appeals in Quebec see Ex parte Tremhlay, supra.
There is no appeal in Manitoba from the decision of a single
Judge of the Court of King's Bench refusing a habeas corpus, but
successive applications for the writ may be made to each Judge.
R. V. Barre, (1905), 11 C. C. C. 1.
Whether a Judge can in Chambers rescind his own order for
a writ of habeas corpus, or quash the writ itself on the ground that
it issued improvidently, is doubtful. See Re Ross, 3 P. R. 301.
Where the discharge from custody of an applicant under
habeas corpus has been ordered by a tribunal of competent juris-
diction in Nova Scotia, that order is not revocable by way of appeal
or otherwise. Re E. G. Blair, 23 N. S. R. 225 ; Re McKenzie, 2
R. & G. N. S. R. 481.
One Writ in Ontario.
In Ontario a person confined or restrained of his liberty is now
limited to only one writ of habeas corpus to be granted by a Judge
of the High Court returnable before himself, or before a Divisional
Court or before a Judge in Chambers with a right of appeal to
the Court of Appeal, whose judgment is final ; and where no such
appeal is taken the judgment which might have been appealed
against becomes final and conclusive, and may be pleaded as res
judicata. Taylor v. Scott, 30 0. R. 475; R. v. Miller (No. 2),
(1909) 15 C. C. C. 156. But see R. v. Teasdale, (1910) 16 C.
C. C. 53. As to costs in Ontario see Re Weatherall, 1 0. L. R. 542.
Detention of Person after Application for Habeas Corpus.
1120. Whenever any person in custody charged with an indictable
offence has taken proceedings before a Judge or Criminal Court having juris-
diction in the premises by way of certiorari, habeas corpus or otherwise
to have the legality of his imprisonment inquired into, such Judge or Court
may, with or without determining the question, make an order for the
further detention of the person accused, and direct the Judge or justice,
under whose warrant he is in custody or any other Judge or justice, to take
any proceedings, hear such evidence, or do such further act as in the
opinion of the Court or Judge may best further the ends of justice.
CASES ILLUSTKATING HABEAS COKPUS LAW. 481
This section was amended in 1908, 7-8 Edw. VII, ch. 18, sec.
14, by inserting the words " or any other Judge or justice " after
the word " custody " in the 8th line thereof.
This section was applied in R. v. Frejd, 18 C. C. C. 110, where
the magistrate had tried and convicted the prisoner when he only
had power to commit for trial.
A Few Illustrative Cases.
If the return shews a commitment bad on the face of it, the
Court will not, on the suggestion that the conviction is good,
adjourn the case for the purpose of having the conviction brought
up and amending the commitment by it. Nor will the Court look
at the conviction unless it is before them, having been brought up
by a certiorari. Ex parte Tinson, L. E. 5 Ex. 257, 39 L. J. M. C.
129.
A Judge who quashes a writ of habeas corpus on the ground
that the petitioner is in custody under a sentence legally pro-
nounced by a competent tribunal, has no power to direct such
tribunal to execute a part of the sentence (say whipping) which
had been suspended in connection with the issue of the writ. R.
V. GoJdslerry, (1905) 11 C. C. C. 159.
An objection to the validity of a writ of habeas corpus on the
ground that it had not been signed by the Judge who ordered its
issue and is not marked " By virtue of ch. 95 of the Consolidated
Statutes for Lower Canada," as provided by s. 3 of the Habeas
Corpus Act, cannot be raised after the return of the writ and pro-
duction of the prisoner. United States v. Browne (No. 2), (1906)
11 C. C. C. 167.
Upon the return of the writ pending the hearing the prisoner
is detained under the writ and not under the authority of the
original warrant. R. v. Bethel, (1696) 5 Mod. 19.
After a return to a writ of habeas corpus and an order refus-
ing discharge thereunder, a second writ of habeas corpus may
afterwards be granted if the circumstances have altered, ex gr.
on the expiry of a term of imprisonment, which was current on the
first application. On the second motion to discharge no objection
should be considered which might have been taken upon the first
application. R. v. Robinson, (1907) 12 C. C. C. 447.
If a prisoner who obtains a writ of habeas corpus for his
release escapes before judgment on the application, the motion will
C.C.P.— 31
482 HABEAS CORPUS CASES — ORDEB PROTECTING MAGISTRATE,
be dismissed. When the prisoner has been recaptured and sentenced
for the escape he may, upon being returned into custody on the
original charge, he granted a second habeas corpus. Re Bartels,
(1907) 13 C. C. C. 59.
When it appears that the applicant for the writ is properly in
custody under an entirely separate charge, his discharge should not
be ordered no matter what the defects in the proceedings attacked
may be. B. v. Hazehvood, 20 C. C. C. 488.
When the depositions returned with a certiorari in aid of a
habeas corpus disclosed no evidence whatever as to a material
fact essential to the offence, the case will not be remitted to the
justice to take evidence on the point omitted. R. v. Brishois,
(1907) 13 C. C. C. 96, and see R. v. Simmons, (1908) 14 C. C. C.
5. But see R. v. Puerst, 22 C. C. C. 183, where the prisoner was
remanded to be properly tried.
Under the Ontario Habeas Corpus Act the Court is bound, on
the return of a writ of habeas corpus, to examine the proceedings
anterior to the warrant and to discharge the prisoner if the pro-
ceedings do not authorize the detention. Ibid. And see R. v.
Mosier, (1867) 4 P. E. 64, 71; R. v. St. Clair, (1900) 27 A. E.
308, 3 C. C. C. 551, and R v. Broadfoot, 17 C. C. C. 71.
The Ontario Habeas Corpus Act, E. S. 0. 1914, ch. 84, sec. 6,
makes it necessary, where a certiorari in aid has been granted, to
consider the depositions and proceedings returned in order to
ascertain whether there is any evidence to sustain the conviction,
even where the conviction is in regular form. R. v. Farrell,
(1907) 12 C. C. C. 52*4.
Order Proftecting Magistrates.
The provisions as to protecting magistrates, found in the Crim-
inal Code and in the Ontario Statute E. S. 0. 1914, ch. 89, sec. 8,
do not apply to habeas corpus where everything is left as it stands
when the prisoner is discharged. R. v. Lowery, (1907) 13 C. C.
C. 105, 107.
The provisions in the Criminal Code protecting magistrates
when a conviction is quashed are contained in sec. 1131 of the
Code as follows:
1131. If an application is made to quash a conviction, order or other
proceeding made or had by or before a justice or stipendiary magistrate,
on the ground that such justice or stipendiary has exceeded his jurisdiction,
the Court or Judge to which or whom tlie application is made may, as a
condition of quashing the conviction, order or other proceeding, if the Court
AEBEST ON TELEGRAM. 483
or Judge thinks fit so to do, provide that no action shall be brought against
the justice or stipendiary by or before whom sudi conviction, order or other
proceeding veas made or had, or against any oflScer acting thereunder or
under any warrant issued to enforce any such conviction or order^
As decided in R. v. Lowery, supra, these provisions do not
apply when the prisoner has been discharged on habeas corpus.
When a party is entitled to relief by habeas corpus, ex debito
justitiae from illegal imprisonment, the Court has no power to
impose upon him the term that he shall not bring any action
against the party from whose illegal act he has suffered as a condi-
tion of relief, but they often refuse the costs of the application
unless he consents to such terms. R. v. Downey, 7 Q. B. 281.
The condition imposed as a term of quashing a justice's order
under sec. 1131 is one which the applicant may accept or reject
on the delivery of the judgment, and, if it be rejected, the Court
may dismiss the application with costs, although it finds that the
justice exceeds his jurisdiction. R. v. Morningstar, (1906) 11
C. C. C. 15, and see R. v. Kehr, 11 C. C. C. 52, where protection
was given on an order quashing a search warrant.
An order discharging a prisoner on habeas corpus on the
ground that the conviction is invalid does not determine the
validity of the conviction for any purposes other than the habeas
corpus motion, and the conviction itself stands until quashed on
certiorari or otherwise formally reversed or vacated. Russell and
Deysdale^ J J., in Johnston v. Robertson, (1908) 13 C. C. C. 452.
A warrant of commitment under the Ontario Liquor License
Act may, under the special powers conferred by sec. 105 of that
statute, be amended on the return of a habeas corpus by striking
out the direction to hold the prisoner for the costs of conveying
him to gaol, if such costs are not properly ascertained in the war-
rant. R. V. Began, (1908) 14 C. C. C. US;R. v. Graves (No. 1),
16 C. 0. C. 150.
Arrest on Telegram.
Where t!ie accused was arrested for an offence alleged to have
been committed in Montreal and a warrant of arrest had been
issued in Montreal, and the police at Halifax, where the arrest
took place, were notified by telegram of the issue of the warrant,
the accused is not entitled to be discharged on habeas corpus if
the original warrant in due form and duly endorsed is returned in
answer to the writ. R. v. Lee Chu, (1909) 14 C. C. C. 322.
484 AMENDING WABKANT — ^ACTING MAGISTRATE.
Where a habeas corpus has been granted without a certiorari
in aid, the Crown should be granted an adjournment of the motion
to discharge, pending a return to a certiorari granted to the Attor-
ney-General. R. V. Nelson, (1908) 15 C. C. C. 10, and see R. v.
MacDonald, (1910) 16 C. C. C. 121.
Where the warrant of commitment in execution returned to
a writ of haleas corpus states only a charge of the offence and
not a conviction thereof, the prisoner should be discharged. Ibid.
Amending Warrant of Commitment.
In Ontario, on the return of a habeas corpus, leave may be
given the Crown to file an amended warrant of commitment in
place of the alleged defective commitment, and the prisoner paay be
remanded under the substituted commitment, if in due form, with-
out determining the objections taken to the first warrant. R. v.
MacDonald supra.
If excessive costs have been included in a warrant of commit-
ment for default in payment of a fine upon summary conviction,
the Court may on return of a habeas corpus amend the conviction
and commitment by reducing such costs to the proper amount and
may remand the prisoner. R. v. Morris; (1910) 16 C. C. C. 1.
Acting Magistrate.
A prisoner held on a summary conviction purporting to be
made b,' a deputy stipendiary acting at the request of the stipen-
diary, but having no power so to act unless the latter was absent
or incapacitated by illness, interest or otherwise, if in fact there
was no incapacity to prevent the stipendiary from acting, must be
discharged on habeas corpus. Ibid.
Where a summary conviction is made by justices within their
jurisdiction to make only if acting at the request of the police
magistrate, or in case of his absence or illness, the conviction
should shew upon its face the fact that the justices were so acting.
R. V. Aclcers (No. 3), (1910) 16 C. C. C. 222.
Costs of Proceedings.
Where the oflScer or other person to whom a writ of habeas
corpus is directed has obeyed it by bringing up the body and
making his return, the Judge or Court may make an order for
IBEEGULAEITIES JUKISDICTION IN N. B, AND N. S. 485
payment by the applicant of the expenses of such officer or person.
Dodd's Case, 2 De G. & J. 510, followed: Be Weathercdl, 1 0. L. E.
542.
The costs of proceedings by habeas corpus were governed in
Ontario by sec. 119 of the Judicature Act, E. S. (1897), ch. 51,
and are therefore in the discretion of the Court or Judge. B. v.
Jones, [1894] 2 Q. B. 382, followed; Be Weatherell, 1 0. L. E. 5li2.
Irregvlarity.
On a motion for habeas corpus the preliminary objections were
taken under the Nova Scotia Crown Eules 15, 163, 17, 352, 348
and 463, that the affidavit proposed to be read in support of the
prisoner's discharge had not been served upon the interested party,
that the affidavits filed were not endorsed with a memorandum
stating on whose behalf they were filed, and that the affidavits had
been interlined and corrections had been made therein which had
not been initialed and rewritten in the margin by the Commissioner.
Held, that these Eules governed and the irregularities should not
be condoned, that the applicant must pay the costs of the appli-
cation, but should have leave to renew his motion. In re Hayes,
21 C. L. T. Occ. K 87.
Jurisdiction in New BrunsvHch.
In New Brunswick a Judge of a County Court has no jurisdic-
tion to grant an order under the Habeas Corpus Act (Con. Stat,
ch. 41), unless the person applying is confined within the Judge's
county. B. v. Wilson, Ex parte Irving, 35 N". B. E. 461.
Jurisdiction in Nova Scotia.
In Nova Scotia the County Court has no jurisdiction to issue
a writ of habeas corpus. But it has concurrent jurisdiction with
the Supreme Court under the Liberty of the Subject Act. Be
Edwin G. Harris, 26 N. S. E. 508. See, also, B. v. Woodmrth, 21
C. C. C. 187 and Be Grouse (No. 1), 21 C. C. C. 231.
It is within a Judge's discretion to award costs against the
prosecutor on the discharge of an applicant on habeas corpus, but
the power should be exercised only in extreme cases, if at all. In
Be Murphy, 28 N. S. E. 196.
486 JDEI8DI0TI0N IN ALBERTA AND SASKATCHEWAN.
Alberta and Saskatchewan.
Where the defendant has been arrested in Alberta upon a war-
rant issued in Saskatchewan and endorsed by a magistrate in
Alberta, on habeas corpus proceedings it was held that the C!oun
has a right to inquire if the magistrate had a right to issue the
process and if the proceedings before the magistrate were an
abuse of the process of the magistrate's Court as being frivolous or
vexatious, and if such a state of facts is found then the Judge may
discharge the prisoner. R. v. Galloway, (1909) 15 C. C. C. 317,
11 W. L. R. 673.
"A Judge of a Superior C!ourt of any province of the Dominion
has jurisdiction to prevent the removal of an accused person from
that province to another upon an information laid by a private
individual before a justice of the peace in the latter province, if it
is made to appear that the proceedings before the justice are
frivolous, or vexatious, or mala fide, or otherwise are an abuse of
the process of the justices' Court." Beck, J., at p. 320, Ihid.
WRIT OF CERTIORARI, WHEN ISSUED. 487
CHAPTER XIII.
Certiorari.
The certiorari is a writ issuing out of the Crown oflBce in the
name of the King or Queen regnant and tested by the Chief Jus-
tice, which the Court of King's Bench, by virtue of its superintend-
ing authority over all Courts of inferior criminal jurisdiction in
the Kingdom, directs to the Judges or officers of those Courts,
or to justices at sessions or out of sessions, commanding them
to certify or return the records or proceedings in a judicial matter
depending before them to the end that the party may have the
more sure and speedy justice before the King or su€h justice as he
shall assign to determine the same. I Bac. Ab. Certiorari, Com.
Dig. Certiorari.
It is an undoubted prerogative of the Crown to see that all
inferior jurisdictions are kept within their proper bounds and ou
that principle the whole doctrine of certiorari proceeds. R. v.
Berkley, 1 Ken. 81, 103. The writ lies in all judicial proceedings
of inferior Courts. Therefore the Court of Eling's Bench has by
the common law in general a right to bring before it all records of
such Courts in order to rectify wrong ones if rectifiable, and if not
to quash them. Ibid.
It is agreed that the Court of King's Bench, having a general
superintendency over all Courts of inferior jurisdiction, may
award a certiorari to remove the proceedings from any of them,
except some particular statute or charter invests them with abso-
lute jurisdiction. R. v. Oillyard, 12 Q. B. 527.
The general principles governing the issue and use of the writ
of certiorari may be shortly stated as follows: —
It is an original writ issued out of a superior Court directed
to the Judges of an inferior Court commanding the return to the
superior Court of all the records, papers and documents relating
to or concerning the judgment, order or conviction, so that the
proceedings had and taken in the inferior Court respecting the
same may be fully inquired into and an ascertainment had as to
whether justice has been done in accordance with the law governing
the judicial disposition of the case. It is judicial acts that will
be investigated and not those of a ministerial nature. The writ
488 PBINCIPLES GOVERNING ISSUE OP CEETIORAEI,
always lies unless it is taken away by express statutory enactment,
and even in this event it will be issued where it is shewn upon
affidavits that there has been an excess or want of jurisdiction
or a wrongful exercise of judicial power. It is frequently enacted
that, where an appeal may be taken under the provisions of the
governing statute, certiorari will not lie, but then express pro-
visions are overridden where a question of jurisdiction is involved.
The granting or refusing of the writ is entirely in the discretion
of the Court or Judge applied to. The writ is issued as a matter
of right upon the application of the Crown. Notice of the appli-
cation must be given to the magistrate and a verified copy of the
conviction or order appealed against produced on the motion, and
the applicant must enter into a recognizance.
As to circumstances in which the Court will exercise its dis-
cretion by refusing the certiorari, see Ex parte SeriesJey, 21 C. C.
C. 140.
The use of a certiorari is for the superior Court the better to
consider and determine the validity of convictions, orders, appeals,
proceedings or indictments, presentments and other judicial pro-
ceedings, and to prevent an unfair or insufficient trial or judg-
ment or the execution of a wrongful judgment which it is thought
would take place in the original jurisdiction. 2 Hale 210.
The proceeding by certiorari differs from a right of appeal in
this that it always lies, unless it is taken away by express words.
While an appeal never lies unless it is expressly given by statute.
R. V. GUlyard, 12 Q. B. 527; R. v. Hanson, 4 B. «& Aid. 521.
A certiorari, being a beneficial writ for the subject, cannot be
taken away without express words. If, therefore, a statute, auth-
orizing a summary conviction before a magistrate, gives an appeal
to the sessions who are directed to hear and finally determine the
matter, it does not take away the certiorari even after such appeal
is made and determined. R. v. JvJces, 8 T, E. 536 ; R. v. Hube, 5
T. E. 542.
Certiorari may be taken away by statute although no appeal is
given to the sessions. R. v. JJ. St. Albans, 5 D. & E. 538; 3
B. & C. 698. Or although an appeal is given to the sessions and
they make an order subject to a case. R. v. J J. Middlesex, 8 D. &
E. 117.
And generally, when thus taken away, the Court will not dir-
ectlyi or indirectly in any manner enable a defendant to remove
proceedings before it. R. v. JJ. YorlcsTiire, 1 A. & E. 563.
WHEN CERTIORARI TAKEN AWAY BY STATUTE. 489
General words in an Act taking away the certiorari will not
bind thd Crown, unless such an intention is to be gathered from
the other parts of the Act. R. v. Allan, 15 East. 333, 342; B. v.
Davies, 5 T. E. 636.
And in all cases the Attorney-General may have a certiorari
on behalf of the defendants. B. v. Battoms, 1 East, at 303.
It is of general benefit that the privilege enjoyed by the Attor-
ney-General should exist, as he can and has assisted defendants in
several instances where a doubtful judgment has been given beloAv
to have their cases reconsidered by applying for certiorari on the
part of the Crown. B. v. Allen, 15 East 333,
An enactment taking away the writ of certiorari in respect of
orders and convictions made under it, does not extend to an order
or conviction made entirely without jurisdiction, though pretended
to be made under the Act. B. v. Bolton, 1 Q. B. 66; B. v. J J.
St. Alhans, 22 L. J. M. C. 142; B. v. Wood, 5 E. & B. 49; B. v.
Haggard, (1870) 30 TJ. C. R. 152; Hespeler v. Shaw, (1858) 16
TJ. C. E. 104; R. v. Davis, 23 C. C. C. 33.
Where by a clause in a statute it is provided that no summary
conviction under it shall be removed by certiorari and upon the
face of a conviction it may be that the justices have no jurisdic-
tion, or that having jurisdiction they have omitted to set it forth,
the defendant cannot obtain a certiorari to remove such convic-
tion unless he shews by affidavit that there was no jurisdiction.
B. V. Long, 1 M. & E. 139.
And, though an order or conviction shew jurisdiction on the
face of it, the Court will receive affidavits to shew whether in
fact there was jurisdiction or not, and grant or refuse a certiorari
thereupon. B. v. Bolton, 1 Q. B. 66.
In Be Kennedy, 17 C. C. C. 342, certiorari was granted, on the
ground of want of jurisdiction, because the magistrate had pro-
ceeded in the absence of the accused and the summons had been
served by the prosecutor himself.
Excess of Jurisdiction.
Even where express words take away certiorari they are not
applicable where there is an excess of jurisdiction; this may be
shewn by affidavit although the conviction may be good ex facie,
or where the Court has been illegally constituted or the conviction
has been obtained through fraud. Ex parte Bradlaugh, 3 Q. B. D.
490 WILL ALWAYS ISSUE WHEN JUBISDICTION EXCEEDED.
509 ; R. V. Cheltenham Commrs., 1 Q. B. 467 ; Shedden v. Patrick,
1 Macqueen, H. of L. C. 535.
On the question of defective jurisdiction objection may be
made as to the character and constitution of the inferior Court,
the nature of the subject-matter of the inquiry, or the absence of
some preliminary proceeding which was necessary to give jurisdic-
tion to the inferior Court. Colonial Bank of Australia v. Willan,
L. E. 5 P. C. 417.
Facts such as are stated above may be brought before the
superior Court by affidavit.
Certiorari refused when the only objections to the proceedings
were, (1) that there had been too long an adjournment, the case
having been afterwards proceeded with without objection, and,
(2) the refusal to adjourn at the request of the defendant: Ex
parte Giherson (No. 3), 18 C. C. C. 355.
Although affidavits will be received to shew that the justices
had no authority to enter upon the inquiry, as, for instance, that
the question brought before them by the complaint was not one
to which their jurisdiction extended, yet the Court will not hear
affidavits impeaching their decision or conclusion of facts, or re-
viewing their judgment on the evidence. See R. v. Bolton, 1 Q.
B. 66, and Ex paHe O'Regan, 17 C. C. C. 160.
As to controverting the magistrate's return, see R. v. Davey,
22 C. C. C. 185.
" It is clear that the decision of a tribunal lawfully constituted,
upon a question properly brought before it respecting a matter
within its jurisdiction, is not open to review on certiorari, but tiie
decision of persons assuming to be a tribunal, that they are law-
fully constituted, is open to review. Thus a decision either by a
justice that he was in the commission, or by any arbitrator under a
statute that he was duly appointed, or by a sheriff that a valid
writ of trial had issued to him, might be shewn by affidavit to be
untrue." Lord Denman, C.J., in R. v. Grant, at p. 63, 19 L. J.
M. C. 59, and see R. v. Nunneley, E. B, & E. 853 ; R. v. Dayman,
7 E. & B. 672.
Where a conviction was bad on the face of it, the writ was
allowed to issue notwithstanding there were express words taking
it away, the magistrate having convicted of an assault although
the complainant only asked sureties to keep the peace. R. v.
Deny et al, 20 L. J. M. C. 189.
CROWN MAY ALWAYS HAVE GERTIOKARI. 491
Where by the words of a statute the certiorari is taken away,
but by its general tenor that is only done to give the option of
appeal to the sessions, the right of proceeding by certiorari is only
barred by the party adopting the method of appeal. R. v. Eaton,
2 T, E, 89.
"A certiorari does not go to try the merits of the question,
but to see whether the limited jurisdiction has exceeded its bounds.
The jurisdiction of the Queen's Bench is not taken away unless
there be express words to take it away. This is a settled point."
R. V. Morley et al., 2 Burr, at p. 1042.
Privilege of the Crown.
The privilege existing on the part of the Crown extends to any
private prosecutor, though he may at a subsequent stage of the
proceedings have become nominal defendant, as if the conviction
had been quashed at the sessions with costs to be paid by the pro-
secutor, and he afterwards seeks to quash the order of the sessions.
On application at the suit of the Crown, either by the Attorney-
General ex officio, or by the private prosecutor, the writ issues as a
matter of course and without any ground for its issue being as-
signed. 2 Hawk P. C. ch. 27 ; 7?. V. J5oM/^&ee, 4 A. & E. 498.
Notice, recognizance, etc., are not required on applications by
the Crown or private prosecutor. R. v. Battoms, 1 East 298, 303 ;
72. V. FarweZZ, 2 Str. 1209. '.:':.
The distinction between an application for the writ by the
Attorney- General ex officio, and by a private prosecutor, is that
in the former case the writ is of absolute right, but in the, case
of an individual private prosecutor, though the writ issues as of
course, yet, upon cause ^hewn, it may be suspended. 2 Hawk P.
C.; ch. 27, sec. 27. ''^f .J^V'^, ''^'"'^f
Notwithstanding that certiorari is expressly taken away by a
statute from a defendant and he cannot procure it except upon
shewing special reason by affidavit, the Crown if it take up the
defence may have a certiorari in the name of the defendant with-
out giving any special reasons and without reference to any re-
strictions imposed in ordinary cases as to the time of applying for
it. R. V. Thomas, 4 M. & S. 4^i3; R. v. Battoms, supra. The
Attorney-General's authority in writing authorizing defendant's
solicitor to apply for the order is required. No recognizance is
necessary upon these writs.
492 CEETIOEAEI AFTER DISMISSAL OF APPEAL.
The Attorney-General is entitled to a certiorari of absolute
right and absolutely in all cases.
The Attorney-General, on the motion for the discharge of the
prisoner, appeared and asked for a certiorari to bring up the mat-
ters and an order was granted accordingly, and the case adjourned
for the purpose of having the material before the Court. The
learned Judge ^{Ridbell, J.), says, p. 12 : " If it had been the case
of the Attorney- General not having previously moved for such writ,
attending and arguing the matter, and then saying that it was
probable the conviction was a good one and on that ground asking
for a certiorari, the authority ot.In re Tinson, (1870) L. R. 5 Ex
257, would be conclusive in favour of the defendant. See also E.
V. Chaney, (1838) 6 Dowl. 281. But that is not what happened:
the Attorney-General did not attempt to support the warrant as it
stood ; but asked that the matter might stand over that all material
might be brought before the Court.'' B. v. Nelson, (1908) 15
C. C. C. 10.
Conviction or Order Affirmed on Appeal.
By sec. 1121 of the Code, no conviction or order made on
summary conviction which has been affirmed, or affirmed and
amended in appeal, shall be quashed for want of form or be re-
moved by certiorari into any superior Court, and no warrant or
commitment shall be held void by reason of any defect therein,
provided it is therein alleged that the defendant has been con-
victed and there is a good and valid conviction to sustain the same.
Appeals from summary convictions are made under the pro-
visions of sec. 750 of the Code, and the following successive sec-
tions up to and including sec. 760.
And by sec. 754 it is provided that the appeal shall be heard
and determined upon the merits notwithstanding any defect in the
conviction or order appealed from.
And by sec. 752 — where an appeal against a summary convic-
tion or order has been lodged in due form — the Court appealed to
shall try and shall be the absolute judge as well of the facts as
of the law, in respect of such conviction. In other words the
judgment shall be final.
And now to complete the finality of this appeal: Sec. 1121
says that, if any conviction or order made on summary conviction
has been either affirmed, or affirmed and amended on appeal, such
NO CEETIOEAEI WHERE APPEAL MADE. 493
conviction shall not be quashed for want of form nor shall it be
removeu by certiorari into a superior Court.
No Certiorari where Appeal Taken.
Then follows sec. 1122, which says that no writ of certiorari
shall be allowed to remove any conviction or order had or made
before any justice if the defendant has appealed from such con-
viction or order to any Court to which an appeal from such con-
viction or order is authorized by law, or shall be allowed to re-
move any conviction or order made upon such appeal.
The provisions of these two sections 1121 and 1122 mean that,
where a defendant has seen fit to appeal to a Judge of a County
or District Court under 750 of the Code, and accepted that forum
to investigate his rights, he must abide by the decision of that
Court, and such decision in appeal shall be final and conclusive,
and bar the appellant's right to further appeal by way of certiorari,
unless in certain exceptional cases which will now be noticed.
For instance, if an appeal has been taken from a summary
conviction and the appeal has lapsed because the magistrate has
failed to return the conviction, a superior Court may nevertheless
issue a certiorari, and quash the conviction on the ground that
the magistrate by his conduct had deprived the defendants of a
reasonable opportunity of making their defence and had acted in
collusion with the prosecutor. Ex parte Cowan, (1904) 9 C. C. C.
45^:, and see E. v. Alford, (1902) 10 C. C. C. 61.
'^s the appellant appealed against his conviction and it was
aflBrmed, he can succeed upon this application only by shewing an
absence of any jurisdiction in the convicting magistrate, and
that is shewn only if the enactment upon which the conviction is
based is ultra vires." Meredith, J., at p. 273, in B. v. Homing,
(1904) 8 C. C. C. 268.
The appeal in the above case was from a summary conviction
under the Ontario Summary Convictions Act, and it was held that
under that Act a certiorari can only be granted in respect of the
want of jurisdiction or excess of jurisdiction of the convicting
magistrate, and the conviction was affirmed.
Where there is a right of appeal from a summary conviction,
the discretion of the Court as to granting a certiorari should be
exercised by refusing the latter unless special circumstances are
shewn. R. v. Herrell, (1899) 3 C. C. C. 15, 12 M. E. 522, and
see Ex parte Ross, (1895) 1 C. C. C. 153 (N.B.) This latter
494 WHEN ISSUE OF CEBTIORAEI DISCBETIONABY.
case was not approved of in Re Traves, (1899) 10 C. C. C. 63
(B.C.). See also. Ex parte Damhoise, 16 C. C. C. 292; R. v. Gal-
lagher, 18 C. C. C. 347, and R. v. Keenan, 21 C. C. C. 467.
It was held in Ex parte Helert, 4 C. C. C. 153, that the liquor
license law of New Brunswick, by providing that a summary con-
viction for selling liquor without a license shall be " final and con-
clusive," takes away the right of certiorari, except as regards the
jurisdiction of the magistrate.
This, however, was expressly dissented from by the Supreme
Court of New Brunswick in R. v. Allingham, 21 C. C. C. 268,
where it was held that such words do not take away the power of
the Court to grant a certiorari. See, also, R. v. Holyohe, 21 C. C.
C. 422.
Although the Indian Act declares that no convictions there-
under shall be removed by certiorari into a superior Court, it
nevertheless lies where there has been improper conduct of the
magistrate, or the fundamental privilege of entitling the party
to a fair trial has been overlooked. In this case the magistrate
had taken a view of the premises in the absence of the parties.
Re Sing Kee, (1901) 5 C. C. C. 86, and see Ex parte Hill, (1891)
31 N. B. E. 84.
As to tiie same provisions in the Canada Temperance Act
taking away certiorari: see R. v. Eli, (1896) 10 0. E. 727, and
R. V. Wallace, (1883) 4 0. E. 127, 140, and in The Ontario Public
Health Act, Re Holland, (1895) 37 U. C. R. 214.
These cases all establish that, where a magistrate has been
guilty of a clear dereliction of duty or improper conduct, or has
acted contrary to natural justice, certiorari will lie notwithstand-
ing that it is taken away by statute.
" It is very old and often reiterated that, although there is a
provision in a statute taking away the writ of certiorari, it does
not deprive the superior Court of its power to issue the writ to
quash a proceeding on the ground of want of jurisdiction. And
it would be a novelty that a provision granting an appeal should
restrict the power to correct a proceeding by certiorari more than
a provision taking away the writ altogether. The fact is that for
want of jurisdiction in an inferior Court the writ of certiorari is
the appropriate remedy and an appeal is not." Graham, E.J., at
p. 174, in his very able and exhaustive judgment in Re Ruggles,
(1902) 5 C. C. C. 163.
CEBTIOEAEI WHILST APPEAL PENDING. 495
The pendency of an appeal to the County Judge does not in-
terfere with certiorari unless, at all events, the question of jurisdic-
tion is raised upon the appeal. R. v. StarTcey, 6 M. E. 588 ; R. v.
Galbraith, 6 M. E. 14.
Where the defendant had appealed within the meaning of sec.
84 of the Summary Convictions Act, Manitoba, the right to certi-
orari was taken away except as to objection going to the juris-
diction of the justice. The bringing of the prosecution was the
laying of the information and it ought to have been laid before
two justices, and the matter of the prosecution was not therefore
properly before the two justices on the hearing of the case and
they had no jurisdiction to hear or determine it, and the convic-
tion was quashed. R. v. StarTcey, (1890) 7 M. E. 43.
This case was followed in Johnston v. V'Reilly, 16 M. E. 405,
12 C C. C. 218.
The Attorney-General, although not a party to the proceedings
in the above matter, intervened, and moved before the full Court
against the decision of Tayloe, C.J., supra. Held, that the At-
torney-General was entitled to intervene, but the decision was
affirmed. R. v. StarTcey, (1891) 7 M. E. 489.
The Ontario Statute, 3 Edw. VII. (1902), ch. 12, sec. 14,
whic!i declares that no conviction under the Ontario Summary Con-
victions Act shall be removed by certiorari, except upon the ground
that an appeal could not afford an adequate remedy, does not pre-
vent the granting of the writ where the magistrate had no jurisdic-
tion over the matter adjudicated. R. v. St. Pierre, (1902) 5 C.
C. C. 365. See E. S. 0. 1914, ch. 90, sec. 10 (3).
Second Application for Certiorari.
A second application for a certiorari in aid of Tidbeas corpus,
being purely ancillary, may be made before another Judge after
the dismissal of one application on the same facts: R. v. Weiss
(No. 2), 22 C. C. C. 42, except in Ontario where a right of appeal
is, by statute, substituted for the former right to renew the applica-
tion as in Tiabeas corpus.
But see R. v. McKay, 17 C. C. C. 1, where the second applica-
tion was refused, although the first was dismissed on a technicality
only.
496 ISSUE OF GEBTIOBABI IN QUEBEC.
Jurisdiction in Quebec.
The superior Court in the province of Quebec has power over
a conviction made by a justice of the peace in a criminal matter
on certiorari proceedings. R. v. Mercier, (1901) 6 C. C, C. 44.
The provisions of the Code of Civil Procedure will be applic-
able in the case of certiorari as regards the decisions of inferior
tribunals in so far and so long as the Statute 12 Vict., ch. 38, sec. 7,
is not repealed by the Federal Parliament. But, as respects con-
victions having by law the value of convictions pronounced by the
Court of King's Bench, that is to say, in a matter of pure crim-
inal law, under the provisions of the Criminal Code, the pro-
visions of the Code of Civil Procedure have no application. It is
■ to the Court of King's Bench and to the Judges of that Court
that it appertains to deal with proceedings by certiorari in mat-
ters purely criminal and before such competent Provincial Court
as may be designated. (Sec. 576 Crim. Code). De Lokimier, J.,
at p. 349, in R. v. Marquis, (1903) 8 C. C. C. 346.
The taking out of a writ of certiorari is a waiver of the right
of appeal. Denault v. Rohida, (1894) 8 C. C. C. 501.
The superior Court and every Judge thereof have jurisdiction
to review every decision rendered by justices of the peace even in
criminal matters by virtue of the laws of Canada as well as by
virtue of the Revised Statutes of Quebec. Lavebgne, J., in
Leonard v. Pelletier, (1903) 9 C. C. C. 19.
But a Circuit Court in that Province has no such jurisdiction.
Dion V. Champagne, 18 C. C. C. 489.
A writ of certiorari will not be granted to review the judg-
ment of the Recorder's Court in the province of Quebec where
the law permits an appeal from such judgments. O'Shaugnessy
V. Montreal, (1904) 9 O. C. 0. 44.
The above decision was based upon the fact that the defendant
could have appealed under s. 879 (now 749) of the Code to the
Court of King's Bench, Crown side, and that, under the provisions
of Article 1292 of the Code of Civil Procedure, certiorari will not
lie where there i= an appeal from the decision of the inferior
Court.
Under Article 1293, C. C. P. Q., the remedy will lie : 1. Where
there is want or excess of jurisdiction. 2. Where the regulations
upon which a complaint is brought or the judgment rendered are
WHEN CEKTIOBABI WILL LIE AND WHEN NOT. 497
null, or. of no effect. 3. Where the proceedings contain gross
irregularities and there is reason to believe that justice has not
been or will not be done.
A deposit of $50 in conformity with Article 217 of the license
law of Quebec is a deposit as security for costs and cannot be con-
verted into payment of fine and costs. The application for cer-
tiorari could not take away from the defendant his option to serve
out the term of imprisonment to which he had been condemned
in default of such payment. The certiorari suspended the sen-
tence (of which defendant had served 10 days) and after it was
quashed the defendant was rendered liable to serve out the re-
mainder of his term if he so persisted, and, exercising such option,
he was entitled to the return of the deposit. Wing y. Sicotte,
(1904) 10 C. €. 0. 171.
No general rule requiring a petitioner on a writ of certiorari
to give securityi for the costs and other charges of the case is in
existence in the province of Quebec. Tierney V. (Jhoquet, 9 Q,
P. E. 229.
Gases where Certiorari Will or Will Not Lie.
A certiorari will not be refused in British Columbia to quash
a conviction under a municipal by-law because the applicant
might have appealed. Ex parte Ross, (1895) 1 0. C. 0. 153, not
approved. Maetin, J., in Re Traves, (1899) 10 C. 0. 0. 63.
The fact that the commitment itself was bad would not affect
the conviction. . . . The commitment is not a judicial but
simply a ministerial act, carrying out the terms of the conviction,
and is not a proceeding that can be brought up here on certiorari,
McLeod, J., at p. 67, 68; in Ex parte Bertin, (1904) 10 C. C. C.
65.
Where the same Court has jurisdiction both in appeal and
upon certiorari and a summary conviction has been transmitted
by the magistrate and filed in such Court as required by sec. 757
of the Code, the writ of certiorari cannot be dispensed with for
the purposes of a motion to quash. R. v. OehrTce, ,(1906) 11 C.
C. C. 109; R. V. MacDonald (No. 2), 5 C. C. C. 279, supra p. 468;
and see R. v. Monaghan, (1897) 2 C. C. C. 488, where the Court
was divided upon the same question. But see R. v. Ames, (1903)
10 C. C. C. 52, where Scott^ J., of the same Court, held to the
contrary, and likewise in R. v. Rondeau, (1903) 9 C. C. C. 523.
c.c.p. — 32
498 WHEN OERTIOKAEI WILL HE AND WHEN NOT.
A magistrate's jurisdiction to make a summary conviction
must appear on the face of the proceedings, or he will be presumed
to have acted without jurisdiction. Certiorari will lie notwith-
standing notice of appeal, and sec. 1132 of the Code, upon any
ground which impeaches the jurisdiction of the magistrate. John-
ston V. O'Reilly, (1906) 12 C. C. C. 218.
An order for discharge of the prisoner will not be made in
certiorari proceedings without a writ of haleas corpus. R. v.
Goulet, (1907) 12 C. C. C. 365.
A search warrant issued under sec. 629 of the Code is a judi-
cial proceeding and may be removed by certiorari. R. v. Kehr,
(1906) 11 C. C. C. 52. So, also, may an order for compensation
or restitution made on a speedy trial by a County Court Judge
which exceeds his jurisdiction. Ex parte Selig, 17 C. C. C. 70.
A coroner's warrant to apprehend a witness who had disobeyed
a summons is a ministerial and not a judicial act, and certiorari
will not be granted on an application to quash the warrant. Re
Anderson and Kinrade, (1909) 14 C. C. C. 448.
After the order absolute for a certiorari and order nisi to quash
was obtained, the applicant served notice of his grounds of appeal
to the County Court, so that his latest step in the proceedings was
in the appeal. Under these circumstances the Court declined to
interfere by certiorari as the appeal proceedings were pending.
Ex parte McCorquindale, ,(1908) 15 C. C. C. 187, and see In re
Kelly, 27 N. B. E. 553.
The right to take the new procedure in Ontario, under 8 Edw.
YII, c. 34, which is substituted for certiorari, must be confined
to cases in which prior to this legislation the defendant would have
been entitled to a writ of certiorari. R. v. CooTc, (1908) 14 C. C.
C. 495, 18 0. L. R. 415; followed in R. v. Renaud, (1909) 15 C.
C. C. 246.
When no suggestion is made as to the insufficiency of the in-
formation, or that the magistrate had no jurisdiction over the
offence charged as well as over the person charged with the offence,
and the right of certiorari had been expressly taken away, any
supposed miscarriage of the inquiry from the insufficiency of the
evidence or as to its irregularity cannot be inquired into by the
Court. Following Ex parte Daley, 27 IST. B. R. 129; Ex parte
Morison, (1909) 16 C. C. C. 28, 39 N". B. R. 298.
See, also, R. v. BolyoTce, 21 C. C. C. 422.
PKACTICE IN BEITISH COLUMBIA AND QUEBEC. 499
Where a case has been decided upon its merits and the accused
was acquitted by the magistrate, a certiorari will not be granted
to quash the order of acquittal, the object being to re-open the
whole case, the only ground urged being that the magistrate re-
fused to compel a witness to answer a material question. R. v.
Eeddin, (1910) 16 C. C. C. 163. See Tt. 0. Causeway & Tramway
Co. V. JJ. Antrim, Ir. K. (1895) 2 Q. B. D. 603.
An application by the accused for a certiorari to remove a
summary conviction may be made without making the informant
a party thereto or serving him with notice of the application, if
an immediate order to quash without the issue of the writ is not
asked and if the Court has not specially directed service on the
informant. Ex parte Harris, (1906) 14 C. C. C. 109, 4 W. L. E.
530.
There is no appeal in British Columbia to the full Oourt from
the decision of a single Judge quashing a summary conviction
on certiorari. R. v. Carroll, (1909) 14 0. C. C. 338.
Provincial statutes in force at the time of Confederation in
1867, regarding certiorari in criminal matters, remain in force
except in so far as they have been repealed by or are incon-
sistent with Dominion legislation. The Court of King's Bench in
Quebec has exclusive jurisdiction to review the decisions of mag-
istrates upon summary trials for indictable offences. R. v. Mar-
quis, (1903) 8 C. C. 0. 346.
The Supreme Court of British Columbia sitting en ianc
as the full Court will not hear a motion for a rule nisi to quash
a conviction, as the motion can be made to a single Judge under
B. C. S. C. Act, s. 5. R. V. Tanghe, (1904) 8 C. O. C. 160.
As to the practice in British Columbia, see, further, R. v.
Jones, 18 C. O. C. 414; R. v. Ferguson, 19 0. C. C. 31.
Juvenile Offenders' Pabt of the Code.
1123. No conviction under Part XVII. shall be quashed for want of
form or be removed by certiorari or otherwise into any Court of Record;
and no warrant of commitment under the said Part shall be held void by
reason of any defect therein, if it is therein alleged that the_ person has
been convicted and there is a good and valid conviction to sustain the same.
Convictions or Warrants not Void fob Irregularities.
1124. No conviction or order made by any justice, and no warrant for
enforcing the same, shall, on being removed by certiorari, be held invalid for
any irregularity, informality or insufficiency therein, if the Court or Judge
before which or whom the question is raised upon perusal of the deposi-
tions, is satisfied that an offence of the nature described in the conviction.
500 IHBEGULARITIES IN CONVICTIONS AND WABEANTS.
order or warrant, has been committed, over which such justice has jurisdic-
tion, and that the punishment imposed is not in excess of that which might
have been lawfully imposed for the said offence : Provided that the Court
or Judge, where so satisfied, shall, even if the punishment imposed or the
order made is in excess of that which might lawfully have been imposed or
made, have the like powers in all respects to deal with the case as seems
just as are by section seven hundred and fifty-four conferred upon the Court
to which an appeal is taken under the provisions of section seven hundred
and forty-nine.
2. Any statement which, under this Act or otherwise, would be suflS-
cient if contained in a conviction, shall also be sufficient if contained in an
information, summons, order or warrant.
The provisions of this section are expressly made applicable to
convictions on summary trials. Part XVI., by section 797 (2) as
enacted in 1913. See ante, p. 452.
1125. The following matters amongst others shall be held to be within
the provisions of the last preceding section : —
(a) The statement of the adjudication or of any other matter or thing
in the past tense instead of in the present;
(b) The punishment imposed being less than the punishment by law
assigned to the offence stated in the conviction or order or to the
offence which appears by the depositions to have been committed ;
(c) The omission to negative circumstances, the existence of which
would make the act complained of lawful, whether such circum-
stances are stated by way of exception or otherwise in the section
under which the offence is laid, or are stated in another section.
2. Nothing in this section contained shall be construed to restrict the
generality of the wording of the last preceding section.
No matter what irregularity, informality or insufiBciency ex-
ists in the conviction, or order, or the warrant enforcing it, the
same shall not by reason of anyi of these things be held invalid
if the Court or Judge after perusing the depositions is satisfied
that—
(a) An offence of the nature described in the conviction, order
or warrant has been committed; (&) that the justice had jurisdic-
tion, and (c) that the punishment awarded is not in excess of
that imposed by the law governing the offence. And, if the Court
or Judge is satisfied as to the offence being committed and that
the justice had jurisdiction, but finds the punishment is in excess
of that which could be lawfully imposed, it or he can deal with
the case as seems just, and exercise all the powers conferred upon
a County Court Judge in appeal under sec. 754. That is, in this
event, the Court or Judge may hear and determine the charge or
complaint on which the conviction or order has been had or
made upon the merits, and may confirm, reverse or modify the
decision of the justice or make such other conviction or order
in the matter as the Court thinks just. And the Court may, by
such Order, exercise any pOwer which the justice whose decision
is appealed from might have exercised, and may make such order
AMENDING CONVICTIONS ON CEETIOEAEI. 501
as to costs to be paid by either party as the Court thinks fit.
And such conviction or order so made by the Court shall have the
same effect and may be enforced in the same manner as if it had
been made by such justice. And any conviction or order so made
by the Court may also be enforced by process of the Court itself.
See further the comments upon sec. 754 in Chapter VIII,
page 343, supra.
"Now it is one thing to decline to quash a conviction where
there is evidence upon which a magistrate might convict and an-
other thing to interfere actively and amend a conviction. To
do that it seems to me that the Court or a Judge must from the
depositions be satisfied that, if trying the defendant in the first
instance, the Court or Judge would upon that evidence have con-
victed. Had the defendant been tried before me, I could never
have convicted him upon the evidence as it stands. The convic-
tion should be quashed." Taylor, C.J., at p. 516, in E. v. Eer-
rell, (1898) 1 C. C. C. 510, 12 M. E. 198, and see Killam, J.,
at p. 522, and Bain, J., p. 527, ibid. And see R. v. Coulson,
(1893) 1 C. C. C. 114, 24 0. E. 246; E. v. Hughes, 2 C. C. 0. 5.
Conviction under the New Brunswick Liquor License Act,
1887. The magistrate imposed a fine of $50, or in default two
months with hard labour. The Court amended the conviction by
striking out the words " with hard labour," so as to correspond
with the minute of conviction which was all right. Ex parte
Nugent, (1895) 1 C. C. 0. 126.
As to amending convictions on certiorari, see E. v. Menary,
(1890) 19 0. E. 691; E. v. Brady, 12 0. E. 358; E. v. McAnn,
(1896) 3 C. C. C. 110, and E. v. Law Bow, (1903) 7 0. C. C.
468; E. V. Hartley, 20 0. E. 481.
The Judges of the Court of Common Pleas, in conflict with
the judgment of the King's Bench Division in E. v. Coulson,
supra, expressed the opinion that the evidence should be looked
at when the proceedings are removed by certiorari in order to
see if there was any evidence whatever to sustain the magis-
trate's finding, even if no defect appeared on the face of the con-
viction, and if there was any evidence of that character the Court
should not review all the evidence or find as to thef propriety of
the magistrate's dismissal. E. v. Coulson, (1896) 27 0. E. 59.
This decision was followed in E. v. Barber, 23 0. L. E. 373.
The Court will not on certiorari quash an adjudication upon
the ground that the fact however essential has been erroneously
found. An adjudication by a tribunal having jurisdiction over
502 NATURE OF AMENDMENTS MADE.
the subject matter is, if no defects appear on the face of it, to be
taken as conclusive of the facts therein stated. R. v. The
" Troop," 29 S. C. R. at p. 673.
Sometimes provisions regulating procedure in criminal pro-
secutions are to be deemed directory only and not imperative.
B. V. McNutt, 20 C. 0. C. 174.
Imposing Less Punishment than Law Prescribes.
Amongst the matters held by sec. 1125, supra, to be within the
scope of sec. 1124, supra, is that (6) "The punishment imposed
being less than the punishment by law assigned to the offence
stated in the conviction or order, or to the offence which appears
by the depositions to have been committed."
If, for instance, a Statute or Ordinance prescribed a penalty
of $25 for a first offence and a conviction is had, and only a
penalty of $5 is imposed, this would be the imposition of a less
punishment than is by law assigned, and, but for the saving pro-
vision of paragraph (6) of sec. 1125, quoted above, the eonvic-
tion would be bad and quashed accordingly.
See B. V. Hostyn, (1905) 9 C. C. 0. ISS.
Imposing Greater Punishment than Law Prescribes.
See B. V. Rudolph, 17 C. O. C. 206 ; R. v. McKenzie, 12 C. C.
C. 435, and R. v. Spooner, post, for cases in which the €ourt
reduced the sentence to the proper term under section 1124, and
see, also, additional cases on this point cited at p. 506, post.
Hearing on the Merits Under Sec. 112^.
The proviso to section 1124, which declares that the Court or
a Judge acting under its provisions shall "have the like powers
in all respects to deal with the case as seems Just; as are by sec.
754 conferred upon the Court to which an appeal is taken under
the provisons of sec. 749,'* calls for some consideration. And
this, in view of the extended powers which are given to a County
Court Judge in appeal under sec. 754, since he shall hear and
determine ihe charge or complaint " upon the merits," notwith-
standing any defect in the conviction or order, or that the punish-
ment is in excess of what might be lawfully imposed.
EEHEARING CHAEGE ON THE MERITS. 603
Query, whether in certiorari under sec. 1124 any duty is cast
upon the Court of "hearing and determining the charge or com-
plaint upon the merits'' otherwise than by perusing the deposi-
tions.
It would hardly seem so, although by sec. 754 the County
Court Judge is not empowered to arrive at his decision "upon
perusal of the depositions." The duty is cast upon him of " hear-
ing and determining the charge or complaint on which such con-
viction or order has been had or made upon the merits." He
cannot so hear and determine the matter without taking the tes-
timony of witnesses and ascertaining therefrom what the merits
of the case are. The hearing in appeal under section 754 is a
trial de novo of the original charge or complaint made before the
justice who made the conviction.
On the hearing of the appeal any of the parties thereto may
call witnesses and adduce evidence, whether such witnesses
were called or evidence adduced at the hearing before the justice
or not, and the depositions of witnesses taken on the hearing be-
low before the justice can only be read on such appeal when the
same have been certified by the justice, and when the Court ap-
pealed to is satisfied by affidavit, or otherwise, that the personal
presence of the witness cannot be obtained by any reasonable ef-
forts. (See sec. 752).
Now, under sec. 1124 the proceedings to be taken by the
Court, so far as the consideration of evidence is concerned, is
limited to the Court perusing the depositions. And from this
perusal the Court acquires knowledge of the merits and must so
peruse these depositions in order that the Court can be satisfied:
(1) That an offence of the nature described in the conviction,
order or warrant has been committed; (2) that the justice had
jurisdiction, and (3) that the punishment imposed is not in
excess of that which lawfully might be imposed.
And then comes the proviso that, when the Courts are so
satisfied, that is satisfied by the reading of the depositions, even
if the punishment imposed or order made is in excess of that
which might lawfully; have been imposed, they shall, if they want
to exercise it, have all the powers in all respects to deal with the
case as seems just under sec. 754. And amongst these powers is
the right "to confirm, reverse or modify the decision of such
justice, or to make such other conviction or order in the matter
as the Court deems just, etc."
504 ASCERTAINING THE MERITS FROM THE DEPOSITIONS.
It is submitted that it is neither required nor contemplated by
sec. 1124 that the Cburt or Judge should do more than " peruse
the depositions" for the purpose of hearing and determining the
merits, in order to confirm, reverse or modify the decision of the
justice, or to make such other order or conviction in the matter as
the Court thinks fit.
The Court, or a Judge, must read the depositions in order to
ascertain the merits of the case, and it is after a perusal of the
depositions, and not till then, that the Court or a Judge can
invoke the powers conferred by sec. 754 for the purpose of con-
firming, reversing, modifying or amending the conviction. But
under sec. 754 the County Court Judge hearing the appeal is
required to do more in order to exercise these powers; he must
hear and determine the charge or complaint upon the merits, and
for this purpose try the case de novo. The decision of the Court
or of a Judge on certiorari, under sec. 1124, is arrived at after
hearing and determining the merits as disclosed in the deposi-
tions, or upon evidence already taken, but ihe County Court
Judge so determines after heating evidence taken before him
viva voce.
In his judgment in R. v. Murdoch, (1900) 4 C. C. C. 82, at
page 90, Me. Justice Osler says : " The effect of these two sec-
tions of the Code, however, now is that, if satisfied upon a per-
usal of the depositions that an offence of the nature described in
the conviction has been committed, the Court may hear and de-
termine the charge upon the merits as disclosed by the depositions
returned in the certiorari and may vary, confirm, reverse or
modify the decision of the justice or make such other order as
they think just, and may by such order exercise any power which
the justice might have exercised.*'
Amending the Conviction.
And see E. v. Spooner, (1900) 4 C. C. C. 209, where the
Cburt treated the conviction as having been made under the Sum-
mary Conviction Clauses of the Code, and reduced the sentence
from 12 months to 10 months and amended the conviction ac-
cordingly. And at page 215, Street, J., says: "Upon being
brought before the magistrate and charged with appearing the
keeper of a house of ill-fame, the prisoner pleaded guilty. This
was a trial upon the merits, and the plea was an admission by
the prisoner that she appeared to be the keeper of such a house."
PEKUSAL OF THE DEPOSITIONS TO ASCEETAIN MEEITS. 505
And see B. v. Meikelham, (1905) 10 C. C. O. 382; R. v. Toy
Moon, 21 M. E. 527; 22. v. Dunlap, 22 C. C. C. 245; 22. v. Belmont,
23 C. C. C. 89.
Where a County Court Judge, on an appeal from a summary
conviction, quashed the conviction as being invalid on the face
without hearing any evidence or trying the' case de novo, a man-
damus to compel the Judge to re-open the appeal for the pur-
pose of hearing evidence was refused, the Court holding, on the
authority of R. v. JJ. Middlesex, 2 Q. B. D. 516, that it had
no power to uiterfere by mandamus^ there having been a deci-
sion byi the Obunty Court Judge on the legal merits. Strang v.
Gellatley, (1904) 8 C. C. C. 17 (B.C.).
In R. V. McKenzie, 12 C. C. C. 435, (Nova Scotia), on a
motion to set aside a conviction for an infraction of the Customs
Act of Canada, the defendant's counsel contended that the Court
must be satisfied upon a perusal of the depositions that the of-
fence charged was committed and must also re-try the case by
having the witnesses orally examined before it, before amending
the conviction. The Chief Justice delivered a dissenting judg-
ment, but the majority of the Court held that the conviction
should be amended.
" As the application to quash the conviction, brought up upon
a writ of certiorari, usually takes place before a Court of Appeal
(as in ISTova Scotia), when the facts are brought forward and
disposed of upon evidence already taken, there would be a strong
presumption that the powers conferred are to be exercised accord-
ing to the practice of the Court. There is nothing in the expres-
sion ' hear and determine ' which limits the investigation to oral
testimony. The words 'hear' and * hearing' were expressions
most commonly used to express the act of the Court in disposing
of cases upon evidence already taken. The expression, 'heard
and determined,' on appeals from justices is satisfied without a
trial by witnesses. The King v. Cawston, 4 Dowl. & By. 445. If
the case has to be tried by witnesses, de novo, why make it a con-
dition that the Court should be satisfied (that the offence has
been committed) only upon a perusal? The defendant's rights
would be amply guarded if the provision was that it should be
satisfied upon afiSdavit, a very usual way of applying for amend-
ment if, afterwards, a conviction could only take place upon a
trial de novo." Graham, E.J., p. 443, ibid.
"But when the procedure of sec. 883 (now 754) is adapted
to the case of a conviction brought up under section 889 (now
506 CONVICTIONS AMENDED ON CERTIORARI.
1124), I do not think it calls for a second hearing on the merits,
if there has heen one already, as I think there should be, at the
time when the question is raised as to the validity of the convic-
tion, if there are any merits to be urged. This hearing, I think,
must take place on the depositions before the Court." Eussell,
J., p. 447, ibid.
Where after a perusal of the depositions the Court is satisfied
that the commission of the offence has been established, but the
conviction is defective in awarding six months* imprisonment
where only three months could be inflicted, the Court has power
to amend the conviction by reducing the term to that allowed by
the statute. R. v. McKenzie, supra, and see R. v. Rudolph, 17
C. C. C. 206.
As additional examples of cases where the conviction was
amended by striking out or reducing unauthorized punishments,
see R. V. Graves (No. 1), 16 C. C. C. 150; R. v. Coolc, 11., 234:
Collette V. R., lb., 281; R. v. Crawford, 20 C. C. C. 49; R. v.
Marcinko, 19 C. C. C. 388. But see R. v. Alexander, 21 C. C.
C. 473, where the conviction was not amended because the mag-
istrate had no jurisdiction to try the prisoner as he had done.
The Court should not amend a conviction if in so doing it has
to exercise the discretion of the magistrate. Also, where the
only penalty authorized has been imposed, but with an unauthor-
ized addition; the latter may be struck out on amendment after
its return under certiorari. R. v. Whiffin, (1900) 4 C. C. C. 141.
As to amending convictions generally, see R. v. Fitzgerald, 19
C. 0. C. 39.
The powers of amendment under sec. 1124 do not apply where
there is an inherent defect in the procedure which has deprived
the defendant of a fair trial. Re Sing Kee, (1901) 5 C. C. C. 86.
Proceedings by certiorari and habeas corpus are not "an ap-
peal;" and, when the powers of amendment of a conviction under
a provincial statute are limited to "appeals" from convictions
or orders, a conviction which illegally imposed hard labor can-
not be amended on the habeas corpus motion. Re (Thing How,
19 C. C. C. 176.
An omission to state or allege the knowledge of the accused
will not invalidate a conviction if the Court on perusal of the
depositions is satisfied iihat the accused had such knowledge.
R. V. Crandall, 27 0. E. 63.
FURTHER CASES WHERE CONVICTIONS AMENDED. 507
For other cases of convictions amended on certiorari, see B.
V. O'Connor, 20 C. C. C. 75, and R. v. Demetrio, 20 C. C. C.
316, 318.
Where an information has been amended in the presence
of the informant, and the accused notified that he would
be tried on the amended information, the fact that the informa-
tion was not re-sworn after amendment will not invalidate the
proceedings if the defendant did not take any objection. Being
satisfied from a perusal of the depositions that an offence of the
nature described in the conviction has been committed by the de-
fendant and that the magistrate had jurisdiction over it, and that
the punishment imposed is not in excess of that by law provided,
the Court should not hold the conviction invalid by reason of
the date and place of the offence not being stated in it, where
these clearly appear from the depositions, and the Court has
power under section 883 (now 754) and 889 (now 1124) of the
Criminal Code to amend the conviction by stating the offence to
have been committed at B. on 29th July, 1902. B. v. Lewis,
(1903) 6 C. C. C. 499.
In B. V. Toy Moon, 19 C. O. C. 33, the Court amended, under
sec. 1124, a conviction for playing or looking on at an unlawful
game, by striking out the charge of looking on.
On a motion to quash a conviction for selling during pro-
hibited hours, where the existence of a license is not proved, the
Court will not amend the conviction so as to make it one for sell-
ing without a license. B. v. Williams, (1892) 8 M. E. 342.
Court will not Consider the Weight of Evidence.
If there is any evidence upon which a conviction can be based
the Court will not consider the weight of evidence. B. v. Mc-
Arthur, (1906) 14 0. C. C. 343; see B. v. Oreen, 12 P. R. 373,
375; In re Trepanier, 12 S. C. R. Ill; B. v. Bowman, 2 C. C. C.
89; B. V. Daun, (1908), 11 C. C. C. 244; R. v. McElroy, 22 C.
C. C. 123.
The defendant was charged with an offence against the Lord's
Day Act of Ontario, R. S. 0. 1897, ch. 246, and adjudged to pay
a fine. Upon motion for a rule wist to quash the conviction.
Held, that the finding of the magistrate upon a question of fact
within, his jurisdiction would not be reviewed upon certiorari;
the remedy, if any, was by appeal. Rule refused. B. v. Urquhart,
4 C. C. C. 256.
508 AWAKDING COSTS IN CEETIORAEI CASES.
The omission of the word " knowingly " from both informa-
tion and conviction is a matter of substance and not a mere
matter of form, and the defect is not curable upon certiorari as
an "irregularity, informality or insufficiency" under sec. 889
(now 1124) of the Code. R. v. Haynes, (1903) 6 C. C. 0. 357.
But see R. v. Crandall, supra.
When a summary conviction is not on its face defective and
the justice had general jurisdiction over the subject matter, the
adjudication involved in the merits of the case on the facts, as
distinguished from collateral facts upon which the justice's juris-
diction depends, is not reviewable on certiorari. R. v. Beagan
(No. 1), 6 C. 0. C. 54, and see R. v. The Troop, (1899) 29 S. C.
B. at p. 673.
Costs against Prosecutor or Applicant.
The High Court in Ontario has no jurisdiction on certiorari
proceedings respecting a criminal charge under Dominion laws,
to award costs against the prosecutor or magistrate on the con-
viction being quashed. There is jurisdiction to award costs
against an wisuccessful applicant in certiorari proceedings re-
specting a purely criminal charge, either because of the recog-
nizance which he has entered into to pay costs, or of the inherent
power which the Court possesses to give costs as a punishment
for erroneously putting the jurisdiction of the Court in motion.
R. V. Bennett, (1902) 5 O. C. C. 456, and see R. v. ParThy,
(1889) 6 T. L. R. 37.
Where a magistrate returns an amended conviction in cer-
tiorari proceedings and the conviction is sustained only by rea-
son of the amendment, costs of the proceedings should not be
awarded against the applicant. R. v. Whiff en, (1900) 4 C. C.
C. 141.
When the only record of conviction produced, before the
institution of certiorari proceedings to quash the same, is bad,
and a valid amended conviction is produced to the Court, the
costs of opposing the motion should not be awarded against the
applicant. R. v. McAnn, (1896) 3 C. O. C. 110.
In Nova Scotia, if the magistrate and the informant appear
upon and unsuccessfully oppose an application for certiorari to
remove a conviction, they may be ordered to pay the costs of the
motion in the event of the conviction being quashed. R. v. Sarah
Smith, (1899) 2 C. C. C. 485.
SECURITY BY EECOGNIZANCE OR DEPOSIT. 509
On motion to quash a conviction being unopposed, no costs
were allowed and terms were imposed that no action should be
brought by the defendant. R. y. McLeod, (1897) 1 C. C. C. 10
(KS.).
Costs of certiorari proceedings are not usually given where the
conviction is amended and affirmed as amended. R. v. Higham,
7 E. & B. 557.
Costs were refused to the justice as against the defendant
where an amended conviction had been returned, on the ground
that the application was justifiable at the time it was launched.
Re Plunhett, (1895) 1 C. 0. 0. 365.
Restitution of Fine and Costs When Conviction Quashed.
This will be ordered if applicant has paid them. R. v. Hung
Gee, 21 C. C. C. 411.
Security by Eecognizance or Deposit.
1126. The Court having authority to quash any conviction, order or
other proceeding by or before a justice, may prescribe by general order that
no motion to quash any conviction, order or other proceeding by or before
a justice, brought before such Court by certiorari, shall be entertained
unless the defendant is shewn to have entered into a recognizance with one
or more sufficient sureties, befiore a justice or justices of the county or
place within which such conviction or order has been made, or before a
Judge or other officer, as may be prescribed by such general order, or to
have made a deposit to be prescribed in like manner, with a condition to
prosecute such writ of certiorari at his own costs and charges, with effect,
without any wilful or affected delay, and, if ordered teo to do, to pay the
person in whose favour the conviction, order or other proceeding is affirmed,
his full costs and charges to be taxed according to the course of the Court
where such conviction, order or proceeding is affirmed.
It is the Court having authority to quash any conviction, etc.,
that is to prescribe by general order as to security for costs either
by way of recognizance with one or more sufficient sureties or by
deposit.
The Courts referred to are "superior Courts of Criminal jur-
isdiction" in each of the provinces and territories (sec. 576).
In Quebec the Court of King's Bench ; in Ontario the Supreme
Court of Judicature (sec. 576 ^(2)) ; in British Columbia, Nova'
Scotia, New Brunswick, Alberta and Saskatchewan the Supreme
Court of those provinces; in Manitoba the Court of Appeal, or
the Court of King's Bench (Crown side) ; in Prince Edward Is-
land the Supreme Court of Judicature; in the Yukon Territory
the Territorial Court.
510 CROWN RULES IN THE DIFFERENT PROVINCES.
Crown Rules in Ontario.
In Ontario the High Court passed a general order on the
17th November, 1886, relating to security on certiorari, and this
rule prevailed until the Grown Eules governing the practice in
certiorari were promulgated by the Supreme Court of Judicature
for Ontario on the 27th March, 1908, when the rule of the 17th
November, 1886, was repealed. See the Judicature Act, ch. 56, E.
S. 0. 1914, sec. 63, where the rules are set out as they now stand.
These rules are set out at length at the end of this chapter. See
also Canada Gazette, vol. 41, p. 3160. The rule relating to recog-
nizance is sub-sec. 7, and is summarized as follows : " The motion
shall not be entertained unless the return day thereof be within
six months after the conviction, order, warrant or inquisition, or
unless the applicant is shewn to have entered into a recognizance
with one or more sufficient sureties in the sum of $100 before a
magistrate of the county within which the conviction or order or
inquisition was made or the warrant issued, etc., and the recog-
nizance with an affidavit of the due execution thereof shall be
filed with the Clerk in Chambers of the Court in which such
motion is made or is pending. The applicant may make a de-
posit of $100 with the Registrar of the Court."
Nova Scotia Crown Rules.
The Nova Scotia Crown Rules 27 to 37 govern the practice as
to certiorari, and are set out at the end of this chapter. Under
these rules a recognizance with two sureties in the sum of $200
must be filed and additional security may be ordered.
Affidavits of justification are imperative, and leave to file such
affidavits pending the motion to quash cannot be granted. Mc-
Tsaac v. McNeil, 28 N. S. R. 424.
British Columhia Rules.
The British Columbia "Crown Rules 1896," will be found
at the end of this chapter.
Rule 5 provides for recognizance in certiorari proceedings.
There is a further condition in the recognizance here beyond
those required in Ontario, since it is provided that the cognizor
will *' pay the partv in whose favour or for whose benefit such
judgment, order or conviction shall have been given or made,
PRACTICE IN ONTAEIO AND BRITISH COLUMBIA. 511
within one month after the said judgment, etc, shall be con-
firmed, his full costs, etc. The Ontario rule does not specify any
particular time within which the costs shall be paid.
By Rule 6, every recognizance with aflBdavit of justification
and due execution shall be filed with the Registrar of the Court
before the issue of any writ of certiorari. This rule must be
strictly complied with. R. v. Ah Gin, (1892) 2 B. C. R. 207,
R. V. Geiser (No. ^), 7 C. C. C. 172 (B.C.).
The British Columbia Rules also differ from the Ontario Rule
since there is no provision in the former for a deposit of money
in lieu of a recognizance.
In Ontario the surety must justify in the sum of $100 over
and above any amount for which he may be surety, as well as over
and above his debts. R. v. Rohinet, (1894) 2 C. C. C. 382.
If there is no affidavit of justification the Court cannot enter-
tain the motion. R. v. Richardson, R. v. Addison, (1889) 17 0.
R. 729.
The recognizance must be entered into before a justice of the
county in which the conviction was made; if before a justice of
another county it will be invalid. R. v. Johnson, (1904) 8 C. C.
C. 123.
Ontario Crown Rule sub-sec. (7), as to recognizance under
Code 1126, does not apply to applications made by a prosecutor
whether acting directly on behalf of the Crown^ or as a private
prosecutor. Re MaHin & Garlow, (1910) 15 C. C. C. 446.
As we have already seen, unless there are express words in the
Act, or an intention manifestly appearing in the same, prohibit-
ing the Crown as well as the subject from removing proceedings
by certiorari, nothing will restrain the prerogative right of the
Crown in this respect. In none of the rules is there anything to
be found limiting the time within which the Crown may move for
certiorari or requiring the Crown to give security. In the British
Columbia rules, the Attorney-General, acting on behalf of the
Crown, is specifically exempted from having to give security. The
principle is so well understood and so ingrafted upon our law,
that we presume that is the reason no specific mention is made as
to the Crown in the Ontario, or Nova Scotia Rules.
In Nova Scotia it is not necessary that a recognizance in
certiorari proceedings should set out that the bail has resided for
a month at the place of residence. R. v. Burhe (No. 1), (1903)
7 C. C. C. 538.
512 ENGLISH CROWN RULES AS TO RECOGNIZANCE.
Where proceedings pending before an inferior Court were
removed by certiorari into a Superior Court after a conviction,
and before the date fixed for sentence a warrant of commitment
having issued enforcing the conviction, the same was held to be
invalid as being unauthorized after the proceedings had been
removed by certiorari. R. v. Foster, (1903) 7 C. C. C. 46.
English Crown Office Rule No. 2Ji..
Under the English Crown Office Eules (1906), Rule No. 24,
the party obtaining the writ, whether for removal of an indict-
ment or conviction, (except the Attorney-General and the prose-
cutor of an indictment against a body corporate) is required to
enter into a recognizance with sureties for the due prosecution of
the proceedings, and to pay the costs in the event of being un-
successful. The recognizance on a writ to remove a conviction,
etc., is to be in the sum of £50 and to be entered into before a
justice where the conviction, &c., was made, or a Judge of the
High Court.
Deposit in Cash.
Where a deposit in cash is made in lieu of recognizance in
certiorari it is not necessary that the applicant should file at the
same time a written document setting forth the condition upon
which the deposit was made. R. v. Davidson, (1900) 6 C. C. C.
117.
The recognizance or deposit is only necessary in case of a
motion to quash a conviction by certiorari. If the conviction or
proceeding sought to be quashed is already before the Court, e.g.,
in a previous motion for habeas corpus, no certiorari is necessary
in aid of the motion to quash, and in such a case no recognizance
or deposit is required. R. v. Wehlan, 45 U. C. E. 396.
Enfoboinq Recognizance on Certiorari.
It is provided by sec. 1096 of the Code that the like proceed-
ings may be had for enforcing the condition of a recognizance
taken under sec. 1126 as might be had for enforcing the condition
of a recognizance taken under the Act of the Parliament of the
United Kingdom passed in the fifth year of the reign of His
Majesty King George the second, chapter 19.
ENFORCING CONDITION OF RECOGNIZANCE. 513
Sec. 3, 5 George II, eh. 19, provides that the party entitled to
the costs, within ten days after demand made of the person or
persons who ought to pay the costs, upon oath made of the mak-
ing such demand and refusal of payment thereof, shall have an
attachment granted against him, or them, for the contempt; and
the recognizance given upon the allowing the certiorari shall not
be discharged until the costs shall be paid and the order be com-
plied with and obeyed.
Upon the Master's allocatur therefor and aflBdavit of the ser-
vice thereof, and of demand and non-payment as above, an attach-
ment issues, on motion for that purpose. No attachment can issue
for the costs, except where there has been a recognizance.
The above is taken from Paley on Convictions (1827), 3nd
ed., p. 315. In Paley, 8th ed. (1904), at p. 47.7, note (z), it is
stated that since the Debtors Act, 1869, the Court has always re-
fused attachment for non-payment of costs on a Master's allocatur.
The practice in England is, if the taxed costs be not paid after
a proper demand, a motion may be made to estreat the recog-
nizance upon an aflBdavit of service of the order to tax and the
Master's allocatur thereon and of demand on the defendant and
his bail.
Section 1096 is the only section of the Code which provides for
the remedy by way of attachment on breach of recognizance. In
all other cases, the remedy is by estreating the recognizance, and
the wording of the old English statute is by no means clear.
Why in this enlightened age should we be relegated to a pro-
cedure so antiquated that it is no longer even followed in Eng-
land ? With due deference, we think that the whole trouble seems
to be occasioned by the default and dilatoriness of our Judges in
not complying with the requirements of sec. 576 of the Code, and
making rules governing these proceedings. Nova Scotia is con-
tent to get along with rules that date as far back as 1891, before
the passing of the Criminal Code Act of 1892. The Ontario
Bench had a great awakening in 1908, but overlooked the enforce-
ment of recognizance. So far, the example of Ontario has been
followed in Alberta and Saskatchewan only.
British Columbia set a good example as far back as 1896, and
under Kule 43 no recognizance shall henceforth be forfeited or
estreated without the order of a Judge. Section 1096 of the Code
is permissive only, and points the way in default of any rule
C.O.P.— 33
514 NOVA SCOTIA BULES AS TO SECTJEITY FOE COSTS.
having been adopted providing for contempt proceedings. It is
respectfully suggested that there should be uniform rules adopted
throughout Canada, by the Courts of the several provinces, govern-
ing procedure in criminal matters as provided for by see. 576.
N'o doubt, a change will be made in Nova Scotia in the near
future if the caustic remarks of Russell^ J., in R. v. Townsend,
bear fruit.
The Nova Scotia Rules were the subject of much consideration
in B. V. Townsend (No. 5), (1907) 13 C. C. C. 209. It was
decided in that case that Rule No. 28 operates as a general order
of the Court as to security for costs on certiorari under sec. 1126
of the Code, and a recognizance entered into under its provisions
may be enforced by attachment under sec. 1096 of the Code.
Also that sec. 1126 applies as well to a recognizance required
to be given on the application for the writ of certiorari as to a
recognizance given after return made to the writ, if upon the
former, the Court may order that the conviction be quashed on
return of the writ without further order.
In Quebec, it has been held that security for costs cannot be
ordered against the petitioner for a writ of certiorari in a criminal
case, owing to the fact that no general rule of Court exists or has
been made under the provisions of sec. 1126 of the Code in that
Province. Tierney v. Choquet, (1908) 13 C. C. 238.
The recognizance or deposit may be delivered to the justice
and sent to the Court with his return to the certiorari. B. v.
Cluff, 46 U. C. R. 565 ; B. v. Bolinet, 16 P. R. 49.
Practice Relating to Certiorari.
The governing statute relating to the procedure necessary to
procure certiorari is the Imperial Act, 13 George II, ch. 18, sec. 5
(1739-40). This Act is in force in Ontario, Manitoba, Saskatche-
wan, Alberta, British Columbia, the Yukon and the North-West
Territories.
It is not in force in Nova Scotia and New Brunswick. British
Columbia, by the Certiorari Procedure Act, ch. 42, R. S. B. C.
(1897), adopts this section of the statute of Geo. II, and also
incorporates the provisions of 12 & 13 Vict. (Imp.), ch. 45, sec. 7.
Statute of IS George II, Ch. IS.
By the provisions of sec. 5 of the Act, no writ of certiorari shall
be granted, (1) unless the same be moved or applied for within six
EEQUIEEMENTS OF 13 GEO. II, CH. 18, SEC. 5. 515
calendar months "next after such convietion, judgment, order or
other proceeding shall be so had or made;" (2) and unless it has
been duly proved upon oath that the said party or parties suing
for the same hath or have given six days' notice thereof in writing
to the justice or justices, or to two of them (if so many there
be) by and before whom such conviction, judgment, order or other
proceedings shall be so had or made, to the end that such justice
or justices may shew cause if he or they shall so think fit, against
the issuing or granting such certiorari.
The six calendar months are to be computed from the date of
the conviction if there has been no appeal. But, if an appeal has
been heard, then it is sufficient if the certiorari is moved for within
six calendar months after the order of sessions confirming the con-
viction. R. \. Boughey, 4 T. E. 281, R. v. Bloxam, 1 A. & E.
386, R. V. JJ. Middlesex, 5 A. & E.' 626, Re Kaye, 1 D. & E.
436.
The application for the writ should be made with reasonable
promptitude, although the Court will not necessarily require it to
be made within the term following the sessions. R. v. JJ. Brech-
nockshire, 42 L. J. M. C. 135.
In 2?, V. Holyole, 21 C. C. 0. 422, the Court on appeal re-
fused to interfere with the discretion of a Judge in granting the
writ, though two terms of Court had intervened.
The application may be made on the last day of six months
and, where the applicant had left the affidavits with the Judge's
clerk on the last day but one of the six months, and had done all
he could for the purpose of making the application on the next
day, but, on account of the Judge not attending Chambers, the
application was not heard until after the six months had expired,
the writ was allowed to issue. R. v. Allen et al., 4 B. & S. 915,
33 L. J. M. C. 98. Paley, 8th ed., pp. 457-458.
Notice of Application for Certiorari.
The six days' notice is imperative and a condition precedent
to the issuing of the writ. The justices can set up the defect in
answer to the rule nisi without making a substantive motion to
quash. R. v. McAllan, (1880) 45 U. C. E. 402, 406.
The objection may be waived by delay and should be taken at
the first opportunity offered. R. v. Basing stole e, (1849) 19 L. J.
M. C. 28, and see R. v. WhitaHr, (1894) 24 0. E. 437.
516 SIX days' notice of the application.
The six days' notice miust be given six days previous to the
application for the rule to shew cause and the six days are to be
reckoned one day. inclusively and the other exclusively. R. v.
Goodenough, 2 A. & E. 463.
The service of the rule to shew cause, though more than six
days be given upon it, is not a sufficient compliance with the Act.
R. V. J J. Glamorganshire, 5 T. E. 279.
The notice may be of intention to move for a certiorari " in
six days from the giving of this notice or as soon as counsel can
be heard." R. v. Rose et al., 3 D. & L. 359, and see In re Floun-
ders, 4 B. & A. 865.
By the English Crown Office Rules (1906), Nos. 19 and 20.
an ex parte motion for an order nisi may be made which, on prima
facie case being made out, is granted. The applicant must prove
by affidavit that he has served the order nisi six days before the
return day on the justices, in order that they may shew camse.
Eule 21.
The notice must precede the motion for a rule nisi and not
merely the motion for the rule absolute. Ex parte Roberts, 50
J. P. 567.
The absence of the affidavit of service is no ground for dis-
charging the rule nisi, though the writ will not be drawn up unless
an affidavit of service has been supplied. R. v. Northumberland,
JJ., 71 J. P. 331.
Where a rule nisi has been served upon the convicting Justices
more than six days before the date of its return, but six days*
notice of intention to apply) for certiorari had not been served
upon them, as required by 13 Geo. II, ch. 18, sec. 5, it was held
not to be a sufficient compliance with the statute. R. v. Plunkett,
(1895) 1 C. C. 0. 365. Mr. Justice Drake said, "as far as this
objection goes, a fresh application might be made by the prisoner."
It is not sufficient to state in the affidavit of service that the
notice was served on two of the justices present at the session,
but it should be alleged that it was served on two of the justices
present at the hearing by and before whom the conviction was
made, and it seems that no presumption arises on this head from
their names appearing in the caption of the order which it is
sought to remove. R. v. Cartworth, 5 Q. B. 201, and R. v, JJ.
Suffolk, 21 L. J. M. C. 169, R. v. Colchester, 20 L. J. M. C. 203.
A defect in this respect is ground for quashing the writ, and,
if the application fails from defective affidavits, it cannot in
BY WHOM NOTICE TO BE GIVEN. 517
general be removed. R. v. Cartworth, supra, R. v. Manchester
Ry. Co., 8 A. & E. 413.
The want of, or any defect in, such previous notice is, there-
fore, a good cause to be shewn against making the rule absolute,
or, even if the rule had been absolute, and the writ issued, the
Court would supersede it, on the ground that no notice was given
previous to the moving for the rule nisi. R. v. Nichols, 5 T. E.
281n, R. V. RattisUw, 5 Dowl. C. P. 539.
The notice should be given by the party suing out the writ
and that circumstance should appear upon the face of the motion
itself, for the object of it, stated by the statute, is to enable the
justices to shew cause against granting certiorari and they may
shew, for cause, that the party suing out the writ was a stranger
to the country, and not interested in the order. The justices,
therefore, ought to have their attention called to the name of the
party by the notice itself. R. v. J J. Lancashire, 4 B. & Aid. 289.
The certiorari can only be issued at the instance of the party
giving notice to the justices. The notice must, therefore, state
the name of the party intending to apply for the writ and should
state who that party is, and on motion for the writ the Court
must be satisfied on the affidavits that the party so named is the
one by whom or on whose behalf the notice was given and the
application is made; the justices must also be identified with
those who are served. And, if there is more than one party
applying for it, the notice must be given by all, and, therefore,
when a notice was signed by only one churchwarden, although it
was stated to be " on behalf of the churchwardens and overseers of
E.," it was held not to be sufiicient notice by the " party or parties
suing forth " the writ within the statute 13 Geo. II, ch. 18, sec. 5.
R. V. JJ. Canthridgeshire, 3 B. & A. 887. The above decision
was doubted in R. v. JJ. Kent, 40 L. J. M. C. 76.
None of these restrictions attach upon application on behalf
of the prosecution or upon one made by the Attorney- General
oflBcially on account of a defendant.
Where from special circumstances the Court or a Judge may
be of opinion that the writ should issue forthwith, the order may
be made absolute, or an order may be made in the first instance
either ex parte or otherwise as the Court or Judge may direct.
Crown Office Eules. '
518 affidavits vebifying pbocbedinqs.
Ontario Eules.
By sec. 63 (1), the proceedings shall be by a notice of motion
in the first instance instead of by certiorari or by rule or order
nisi.
Sub-sec. (2). The notice shall be served at least six days
before the return day upon the magistrate, etc., making the con-
viction or order, and also upon the prosecutor or informant (if
any) and upon the clerk of the peace, if the proceedings have been
returned to his office, and it shall specify the objections to be
raised. On these notices shall be endorsed a copy of sub-sec. (4)
and the further notice prescribed by sub-sec. (3).
Affidavits Verifying Proceedings.
The CroAra Office Eules and the British Columbia Eules each
provide that "no order for the issuing of a writ of certiorari to
remove any order, conviction, or inquisition, or record or writ of
habeas corpus ad subjiciendum, is to be granted where the validity
of any warrant, commitment, order, conviction or record shall be
questioned, unless, at the time of moving, a copy of any such war-
rant, commitment, order, conviction, inquisition or record verified
by, affidavit be produced and handed to the officer of the Court
before the motion be made, or the absence thereof accounted for
to the satisfaction of the Court.
According to the Nova Scotia Eules, a copy of the conviction
to be attached must be produced verified by affidavit.
In New Brunswick, this is also required : see Ex parte Emmer-
son, (1895) 1 C. O. C. 156, 33 N. B. E. 425.
The application for the certiorari must be supported by affi-
davits shewing the ground on which it is sought.
The affidavit should be entitled in the Court to which the
application is made and not in the Court below.
The want of this affidavit has been held to be fatal. E. v.
Stevens, 31 N. S. E. 125, B. v. Bigelow, 31 N. S. E. 436.
Copies of the information, evidence taken, justice's minute of
adjudication, formal record of the conviction, the exhibits and. all
other papers connected with the proceedings, should be made ex-
hibits to the affidavit of the applicant and verified as being true
copies of the originals.
BETURN TO THE WRIT BY JUSTICES. 519
If it is impossible to secure a copy of the proceedings or any
part thereof, the affidavit should state this fact and disclose what
steps were taken to secure the same, and the reasons why any
were not obtained.
The writ is of no effect unless delivered before the time of its
return has expired. From the time of its delivery, the writ super-
sedes the authority of the magistrate below, and all subsequent
proceedings by them taken are void. The magistrate is also liable
for contempt, and to attachment and fine. The magistrate, upon
receiving certiorari, should yield obedience to it by entering all
proceedings comprehended in its mandate whether taken before or
after the date of the writ.
Return of the Writ or Order.
In Ontario, as we have seen, on the notice of motion is to be
endorsed a notice in accordance with the form given in sub-sec.
(3). This notice requires the justice to make the return in the
manner therein specified. Sub-section (4) provides for the certi-
ficate of return to be endorsed on the notice served upon the
justice or other officer and the form of the return is set out. It is
also declared in sub-sec. (5) that the certificate shall have the
same effect as a return to a writ of certiorari.
Under the Crown Rules and the old practice, the justice en-
dorsed the following on the back of the writ : —
" The execution of the writ appears by the schedule hereunto
annexed. The answer of A. B., Esquire, one of the keepers of the
peace and justice within mentioned."
This is signed by the justice or person making the return.
The record and documents are set out in a schedule annexed to
the writ.
The return must certify the record itself, that is, all original
documents ; it will be bad if a copy of the record is only mentioned
or the tenor thereof.
The return should be under the seal of the justice, and he
should add his description, otherwise it will be sent back to him
for amendment.
If the justice has transmitted the conviction to the clerk of
the peace, he must, nevertheless, make a return certifying this
fact, and the regular return of the conviction will be made by the
latter.
520 PBOCEEDINGS ON APFIEMANCE OF CONVICTION.
The writ and certificate and all papers and documents included
in the return should be sent or delivered to the proper officer of
the Court designated to receive them.
If a conviction has not already been made up, the justice may
draw up a formal conviction and return it with the writ.
If the record returned is for any reason not well removed by
reason of a variance between the return and the writ or the return
is otherwise imperfect, then nothing is before the Court upon
which it can proceed. In that case, therefore, the Court will
quash the return and award a new writ. Palmer v. Forsyth, 4
B. & C. 401.
Proceedings on Eefusal to Quash Conviction.
1127. If a motion or rule to quash a conviction, order or other pro-
ceeding is refused or discharged, it shall not be necessary to issue a writ
of procedendo, but the order of the Court refusing or discharging the appli-
cation shall be a sufficient authority for the registrar or other officer of the
Court forthwith to return the conviction, ' order or proceeding to the Court
or justice from which or whom they were removed, and for proceedings to
be taken thereon for the enforcement thereof, as if a procedendo had issued,
which shall forthwith be done.
1128. No order, conviction or other proceeding made by any justice
or stipendiary magistrate shall be quashed or set aside, and no defendant
shall be discharged, by reason of any objection that evidence has not been
given of a proclamation or order of the Governor in Council, or of any rules,
regulations, or by-laws made by the Governor in Council in pursuance of
a statute of Canada, or of the publication of such proclamation, order,
rules, regulations or by-laws in the Canada Oazette.
2. Such proclamation, order, rules, regulations and by-laws and the
publication thereof shall be judicially noticed.
By sec. 1127, the order of the Court refusing or discharging
the application for certiorari is a sufficient authority in itself
without other process^ for the registrar or other officer of the
Court forthwith to return the conviction, order or proceeding
which has been removed into the Superior Court, to the Court or
Justice from which or whom they were removed, so that proceed-
ings may be taken for the enforcement thereof, which shall be
forthwith done. Two things are emphasized here, first, that the
officer of the superior Court shall make the return forthwith, and
secondly, that the proceedings for the enforcement by the justice
of the conviction or order shall be done forthwith.
This section onlvi applies where a conviction or order has been
affirmed and not where it has been quashed. When a conviction
has been quashed, the record must remain in the superior Court
and cannot be sent back to the inferior Court.
DEFECTS IN FORM NOT FATAL. 521
Where a conviction has been removed by certiorari, together
with the information and proceedings therein, and the conviction
was quashed, the information by a mistaken order of the Court
was taken off the files and returned to the justice who, thereupon,
issued a fresh summons. Held, that the information when re-
moved into the superior Court became part of the records of that
Court and cannot be returned to the justice when the conviction
has been quashed, and prohibition was granted to prevent the
justice proceeding under the second summons. An order for the
return of any proceedings to the convicting justice can only be
made under the authority of sec. 895 (now 1127) and then only
in cases where formerly a procedendo would have issued upon the
conviction being confirmed and not where the conviction is
quashed. R. v. Zichrichy (1897) 5 C. C. C. 380, 11 M. R. 452.
And see R. v. Harrison, (1907) 15 0. L. E. 231.
Conviction not to be Set Aside fob Defect in Form.
1129. Whenever it appears Dy any conviction made by a justice or
stipendiary magistrate that the defendant has appeared and pleaded, and
the merits have been tried, and the deftendant has not appealed against the
conviction, where an appeal is allowed, or, if appealed against, the convic-
tion has been aflSrmed, such conviction shall not afterwards be set aside or
vacated in consequence of any defect of form whatever, but the construc-
tion shall be such a fair and liberal construction as will be agreeable to the
justice of the case.
See R. v. Hostyn, (1905) 9 C. C. C. 138.
This section speaks of a conviction made by a justice or
stipendiary magistrate, but quaere, whether it would not be con-
strued to include convictions by police magistrates and other simi-
lar tribunals?
Where the depositions of the witnesses had not been taken
down in writing, it was held, on certiorari proceedings to quash
the conviction, that the omission to comply with the provisions of
the Code in this respect is not a defect of form mentioned in sec.
896 (now 1129) of the Code. R. v. Lacroix, (1907) 12 C. C. C.
297, and see R. v. McGregor, (1905) 10 C. C. C. 313, and De-
nault v. Rohida, (1894) 8 C. C. C. 501.
1130. No conviction, sentence or proceeding under Part XVI shall
be quashed for want of form ; and no warrant of commitment upon a con-
viction under the said Part shall be held void by reason of any defect there-
in, if it is therein alleged that the offender has been convicted and there is
a good and valid conviction to sustain the same.
See R. V. Oihson, (1898) 2 C. C. C. 302; R. v. Burtress,
(1900) 3 C. C. C. 536. This section of the Code was discussed
522 ONTARIO CROWN RULES GOVERNING CERTIORARI.
in the last chapter, and reference can be had to the comment there
made, and the above cases which are noted supra.
Crown Rules in Different Provinces "Where They Have
Adopted Eules.
Grown Rules in Ontario Governing Certiorari Practice.
By sec. 63 of the Judicature Act, ch. 56 of R. S. 0. 1914, the
following rules are in force: —
63 (1). — ^Where it is desired to move to quash a conviction,
order, warrant or inquisition, the proceeding shall be by motion
in the first instance, instead of by certiorari, rule or order nisi.
(2). — Notice of the motion shall be served at least six days
before the return day thereof, upon the magistrate making the
conviction or order, or issuing the warrant, or the coroner making
the inquisition, and also upon the prosecutor or informant (if
any), and upon the clerk of the peace, if the proceedings have been
returned to his oflBce, and the notice shall specify the objections
intended to be raised.
(3). — Upon the notice of motion shall be indorsed a copy of
sub-section (4) and a notice in the following form, addressed to
the magistrate, coroner or clerk of the peace, as the case may be : —
" You are hereby required forthwith, after service hereof, to
return to the central oflBce at Osgoode Hall, Toronto, the convic-
tion (or as the case may be) herein referred to, together with the
information and evidence, if any, and all things touching the
matter as fully and entirely as they remain in your custody, to-
gether with this notice/* .
Dated
To A. B.
Magistrate (or as the case may be.)
C. D.,
Solicitor for the applicant."
(4). — Upon receiving the notice so indorsed, the magistrate,
coroner or clerk of the peace, shall return forthwith to the central
office, the conviction, order, warrant or inquisition, and the infor-
mation and evidence, if any, and all things touching the matter,
and the notice served upon him with a certificate endorsed upon it
in the following form : —
ONTABIO CEOWN RULES GOVEBNING CERTIORAKI. 523
" Pursuant to the within notice I herewith return to this
Honourable Court the following papers and documents, that is to
say: —
" (1) The conviction (or as the; case may be) ;
" (2) The information and the warrant issued thereon;
" (3) The evidence taken at the hearing;
" (4) (Any other papers or documents touching the matter).
"And I hereby certify to this Honourable Court that I have
above truly set forth all the papers and documents in my custody
or power relating to the matter set forth in this notice of motion."'
(A copy of this rule should be indorsed upon the notice of
motion served upon the magistrate, coroner, or clerk of the peace,
from whom the return is required.)
,(5) The certificate shall have the same effect as a return
to a writ of certiorari, or to an order under the Eules.
(6) The notice shall be returnable before a Judge of the
High Court Division sitting in Chambers.
(7) The motion shall not be entertained,
(a) Unless the return day thereof is within six months after
the conviction, order, warrant or inquisition, and
(b) The applicant is shewn to have entered into a recog-
nizance with one or more sufficient sureties in the sum of $100
before a magistrate of the county within which the conviction or
order or inquisition was made, or the warrant was issued, or be-
fore a Judge of the County Court of that county, or before a
Judge of the High Court Division, conditional that the appli-
cant will prosecute the application at his own costs and charges,
without any wilful or affected delay, and that he will pay
the person in whose favour the conviction, order, or other pro-
ceeding is affirmed his full costs and charges to be taxed accord-
ing to the course of the Court, in case the conviction, order or other
proceeding is affirmed or has paid into Court the like sum as
security that he will do so.
(8) The recognizance with an affidavit of its due execution
shall be filed with the clerk in Chambers.
(9) The Judge shall have all the powers of the Court in the
like matters, and may order the production of papers and docu-
ments as he may deem necessary.
(10) No appeal from the order of the Judge shall lie unless
leave is granted by a Judge of the High Court Division.
524 NOVA SCOTIA AND BRITISH COLUMBIA EULES.
Nova Scotia Grown Rules.
The Nova Scotia Crown Rules 27 to 37 relate to the practice
to be observed in respect to the ■writ of certiorari.
(1) A four days' notice of the application must be given to
the opposite party, and also to the magistrate in order that either
may shew cause.
(2) A recognizance with two sureties in the sum of $200 must
first be filed to respond the judgment, and additional security may
be ordered.
(3) Such writ shall be applied for within six months after a
conviction.
(4) No order for a certiorari shall be made unless a copy
of the conviction to be attacked is produced, verified by affidavit.
(5) No objection on account of any mistake or omission in
a judgment or order brought up by writ shall be allowed unless
the omission or mistake was specified in the notice of motion for
the writ.
In Nova Scotia it was held that the requirements of the rule
as to filing affidavits of justification are imperative, and that
leave to file such affidavits pending the motion to quash cannot
be granted. Mclsaac v. McNeil, 28 N. S. E. 424.
British Columbia Rules.
The Crown Rules of British Columbia, 1896, relating to certi-
orari are as follows: —
(2) Every applicant for a writ of certiorari at the instance of
any person, other than the Attorney-General on behalf of the
Crown, shall be made to a Judge of the Supreme Court by sum-
mons to shew cause ; unless, in the opinion of the Judge, the writ
should issue forthwith, in which case the order may be made abso-
lute ; or an order may be made in the first instance either ex parte,
or otherwise, as the Judge may direct.
(3) No writ of certiorari shall be granted, issued, or allowed,
to remove any judgment, conviction, order, or other proceedings
had or made before any justice or justices of the peace, unless
such writ be applied for within six calender months after such
judgment, conviction, order, or other proceeding shall be so had
BRITISH COLUMBIA EULES CONTINUED, 525
or made, and unless it be proved by affidavit that the party suing
forth the same has given six days' notice thereof in writing to
the justice or justices, or to two of them if more than one, by
and before whom such judgment, order, conviction, or other pro-
ceedings shall be so had or made, in order that such justice or
justices, or the parties therein concerned, may shew cause, if he or
they shall so think fit, against the party issuing or allowing such
writ of certiorari. The writ shall be in the Form No. 9, Appen-
dix J. of the " Supreme Court Eules, 1890."
(4) No order for the issuing of a writ of certiorari to remove
any order, conviction or inquisition, or record, or writ of habeas
corpus ad subjiciendum, shall be granted where the validity of any
warrant, commitment, order, conviction, inquisition, or record,
shall be questioned, unless, at the time of moving, a copy of any
such warrant, commitment, order, conviction, inquisition or record,
verified by affidavit, be produced and handed to the officer of the
Court before the motion be made, or the absence thereof accounted
for to the satisfaction of the Court.
(6) No writ of certiorari shall be allowed to remove any judg-
ment, order, or conviction given or made by justices, unless the
party (other than the Attorney-General acting on behalf of the
Crown) prosecuting such certiorari, before the allowance thereof,
shall enter into a recognizance with one or more sufficient sureties
before one or more justices, or before any Judge of the Supreme
Court or County Court, in the sum of $100, with condition to
prosecute the same, at his own costs and charges, with effect,
without any wilful or affected delay, and to pay the party in Avhose
favour or for whose benefit such judgment, order, or conviction
shall have been given or made, within one month after the said
judgment, order or conviction shall be confirmed, his full costs
and charges to be taxed according to the practice of the Court;
and, in case the party prosecuting such certiorari shall not enter
into such recognizance, or shall not perform the conditions afore-
said, it shall be lawful for the said justices to proceed and make
such further order for the benefit of the party for whom such
judgment shall be given, in such manner, as if no certiorari had
been granted. •
(6) Every such recognizance with affidavit of justification,
and of due execution, shall bo filed with the registrar of the Court
before the issue of any writ of certiorari.
(7) When cause is shewn against an order nisi for a certiorari
to remove any judgment, order or conviction upon which no special
526 SASKATCHEWAN CEOWN PRACTICE EULES.
case has been stated, given, or made by justices of the peace
for the purpose of quashing such judgment, order or conviction,
the Court, or a Judge thereof, if it shall think fit, may make it
part of the order absolute for the certiorari that the judgment,
order, or conviction shall be quashed on return without further
order, and in such case no such recognizance as is required by
the last preceding rule shall be necessary, and a memorandum to
ttiat effect shall be indorsed by the proper oflBcer upon the issuing
of the writ of certiorari.
(8) No objection on account of any omission or mistake in any
judgment or order of any justice of the peace or Court of summary
jurisdiction brought up upon a return of a writ of certiorari, and
filed in the Supreme Court, shall be allowed, unless such omission
or mistake shall have been specified in the order for issuing the
certiorari.
Saskatchewan Cbown Peactice Eules.
Custody of Papers.
1. The registrar of the supreme court en banc shall have the
care and custody of the records and proceedings in respect to
proceedings arising by way of certiorari, qiio warranto, injunction
in the nature of a quo warranto, mandamus, prohibition or haljeas
corpus. C. P. K, 1.
Certiorari.
2. Subject to the provisions of this rule being dispensed with,
as hereinafter provided, no motion to quash any conviction, order
or other proceeding by, or before, a justice or justices of the peace,
and brought before the supreme court of Saskatchewan, or any
judge thereof, by certiorari, shall be entertained by such court or
judge, unless the defendant is shown to have entered into recog-
nisance in $200, with one or more suflBcient sureties, before a
justice of the peace and deposited the same with the registrar; or
to have made a deposit with the said registrar of $100, in either
case, with a condition to prosecute such motion and writ of certi-
orari, at his own costs and charges, with effect and without delay,
and if ordered to do so, to pay to the person in whose favour the
conviction, order or other proceeding is affirmed his full costs and
charges, to be taxed, where such conviction, order, or proceeding
is affirmed. C. P. P. 2.
SASKATCHEWAN RUIZES CONTINUED. 527
3. Every application for a writ of certiorari, at the instance
of any other person than the attorney general on behalf of the
Crown, shall be made to a judge by notice of motion or to the
court en banc for an order nisi, to show cause why the writ should
not issue. C. P. E. Am. 1.
4. Such notice or order nisi shall be served upon the justice or
one of the justices who made the conviction or order, and upon
such other person or persons as the court or a judge shall, upon
such application, direct. C. P. R. Am. 2.
5. Where, from any cause, the court or a judge is on such
application of opinion that the validity of the conviction, or order,
can be dealt with on the return of the notice of motion or order
nisi, the notice or order nisi shall also be to show cause why the
conviction or order should not be quashed, but in this case the
private prosecutor shall be one of the persons to be served, and
the judge or court may, in such case, dispense with the giving of
security required by rule 2. CL P. R. Am. 3.
6. Ko application for a certiorari shall be made after the
expiration of six months from the date of the conviction or order.
C. P. R. 5.
7. On an application for a certiorari to remove a judgment,
conviction or order, the court or a judge may order such judg-
ment, conviction or order to be quashed, without the actual issue of
the writ of certiorari; and, if such person is in custody under any
warrant or other process issued on such judgment, conviction or
order, the court or judge may, in granting such order for a writ
of certiorari or to quash such judgment, conviction or order, at
any time after said order is granted, order him to be discharged
from custody absolutely, or on his giving such security, as the court
or judge shall direct, that if the said judgment, conviction or
order is confirmed, or the application for the writ of certiorari
is dismissed, or the writ of certiorari is quashed, he will comply
with the provisions of the judgment, conviction or order and pay
the fine or penalty imposed, and in case of imprisonment without
fine, that he will forthwith surrender himself into the same custody
and undergo the remainder of his imprisonment, notwithstanding
the term limited for his imprisonment shall have expired. If the
recognisance shall be forfeited, a warrant for the apprehension of
the defendant may be granted by a judge, which shall authorise
his arrest and imprisonment for the unexpired term. N. S. 37.
528 SASKATCHEWAN RULES CONTINUED.
Habeas Corpus.
31. If a writ of habeas corpus be disobeyed by the person to
whom it is directed, application may be made to the court or a
judge, on an affidavit <5f service and of such disobedience for an
attachment for contempt. C. P. E. 30.
38. The return of the writ of habeas corpus shall contain a
copy of all the causes of the prisoner's detention indorsed on the
writ, or on a separate schedule annexed to it. C. P. R. 31.
33. The return may be amended, or another substituted for it,
byi leave of the court or a judge. C. P. R. 32.
34. When a return to the writ of habeas corpus is made, the
return shall first be made and motion then made for discharging
or remanding the prisoner, or amending or quashing the return.
C. P. P. 33.
35. On the argument of a motion for a writ of habeas corpus,
the court or a judge may, in their or his discretion, direct an
order to be drawn up for the prisoner's discharge, instead of
waiting for the return of the writ, which order shall be a suffi-
cient warrant for any gaoler or constable, or other person, for his
discharge. C. P. B. 34.
General.
36. Application for a prerogative writ of mandamus, for a
writ of certiorari, or order to quash proceedings without the actual
issue of the writ, for a writ of habeas corpus, for prohibition, or
for an information in the nature of a qu^ warranto, may be made
either to a judge in chambers or in court, or to the court en banc.
The court or a judge may, if it be deemed proper, grant ex parte
an order for the immediate issue of a writ of habeas corpus. C.
P. R. 35.
37. Any writ may be served, according to the rules relating
to the service of writs of summons, under the rules of the supreme
court. C. P. R. 36.
38. It shall not be necessary to serve the original of any writ,
judgment, order or other proceeding, but the party served with a
copy thereof shall be entitled to inspect the original at the time
of service, if he so demand, C. P. R. 37.
39. All proceedings under these rules shall be intituled in
tlie supreme court and shall be styled in the matter to which
ORDINARY RULES OF COURT APPLICABLE. 529
they relate, so as to show the name of the applicant as inform-
ant, relator, plaintiff, private prosecutor, or otherwise, accord-
ing to the nature of the case and the name of the defendant,
respondent or party against whom the application is made. C.
P. E. 38.
40. In all proceedings under these rules the costs shall be
in the discretion of the court or judge, who shall have full
power to order either the applicant or the party against whom
the application is made, or anyi other party to the proceedings,
to pay such costs, or any part thereof, according to the result.
C. P. R. 39.
41. The proceedings for attachment for contempt, for dis-
obedience of any writ, judgment, or order issued or made under
these rules, shall conform as nearly as may be to proceedings for
contempt, for disobedience of any writ, judgment or order in a
civil action. C. P. E. 40.
Application of Rules of Supreme Court.
44. The following rules and orders of the supreme court with
respect to civil actions and proceedings in such court shall, as
far as applicable, apply to all proceedings in relation to Crown
matters, and wherever by any of such rules, it is provided that
any act shall be done by, or proceeding held by, or before the
local registrar, such act shall be done by, or proceeding held by,
or before the registrar:
Order V (Service of other proceedings)
EuLE 73 (Constitutional questions)
Order XI except rules 147, 152,
and 168 (Pleading generally)
Order XII except rule 172. .. .(Statement of claim)
Order XIII rules 176, 177, 178,
179 and 190 (Defence and counterclaim)
Order XIV (Eeply and close of pleadings)
Order XVI (Matters arising pending the
action)
Order XVII (Eaising points of law or)
Order XXI (Amendment)
Order XXII (Discovery of documents)
c.c.p. — 34
S30 FEES AND FORMS.
Order XXIII except rules 281
and 305 (Examination for discovery)
Order XXIV (Admissions)
Order XXVI (Special case)
Order XXVII except rule 355. (Trial)
Order XXVIII (Evidence)
Order XXX (AflBdavitS and depositions)
Order XXXII (Judgments and entry of judg-
ment)
Order XXXIII (Execution)
Order XXXIV (Discovery in aid of execution)
Order XL ! (Interpleader)
Order XLII. (Motions and applications)
Order XLIII (Applications in chambers gen-
erally)
Order XLIV (Court en banc)
Order XLV except rule 691. . .(Sittings and vacation)
Order XLVI (Time)
Order XLVII except rules 721
724, 725, 726 and 727 (Ill.—Taxation and Tariff of
Costs.)
Order XLVIII (Service of orders, etc.)
Order XLIX (Non-compliance and irregulari-
ties)
C. P. R. 41.
45. The fees, taxable to the registrar for services on the
crown practice side of the court, shall be the fees specified in items
32 to 40 of schedule 2 of the tariff, and where no fees are speci-
fied by such items, such fees as are taxable to the local registrar
under the tariff for similar services, except when the service is
performed in connection with the court en banc, when the fees
taxable shall be those taxable to the registrar.
46. Where no other provision is made by these rules, the
procedure and practice shall, as far as may be, be regulated by
the crown oifice rules for the time being in force in England.
Forms.
47. The forms for the time being in use in England under
the said crown office rules where applicable, and. where not ap-
plicable, forms of the like character, as near as may bo. shall
RULES FOR CASES STATED BY MAGISTRATES. 531
be used in all proceedings except where otherwise ordered by
these rules. C. P. R. 42.
48. These rules may be cited as " The crown practice rules.'*
Rules for Cases Stated under Section 761 of The Criminal
Code.
1. An application to a justice of the peace to state and sign
a case, under said section 761, shall be in writing, and be de-
livered to such justice or left with some person for him at his
place of abode, within seven clear days from the date of the pro-
ceeding questioned.
2. Within one calendar month after such application has
been so delivered or left for him, the justice shall state and sign
and deliver to the appellant a case setting forth:
(a) The substance of the information or complaint;
(&) The names of the prosecaitor (or complainant) and de-
fendant ;
(c) The date of the proceeding questioned;
(d) The facts of the case;
(e) The conviction, order, determination or other proceed-
ing questioned;
(/) The grounds on which the same is questioned, which
must be confined to the grounds raised at the trial;
(g) The grounds upon which the justice supports the pro-
ceeding questioned, if the justice sees fit to state any.
3. The justice shall not deliver said case until after the ap-
pellant shall have entered into a recognisance, and paid the fees
as provided by section 762 of the Code.
4. In the event of the justice declining, refusing or omitting
to state a case, the appellant may apply to the court en banc for
a rule as provided by section 764 of the Code.
(a) Or the appellant may in such event apply to a judge
sitting in chambers, upon affidavit of the facts, for a
summons calling upon the justice and the respondent to
show cause why such case should not be stated; and the
judge in chamhers may, on the return thereof, make
such order, with or without payment of costs, as to him
seems meet ; and the justice being served with such order
shall, if ordered to do so, state a case upon the appellant
entering into such recognisance and paying the fees to
the justice, as provided in said section 762.
532 SASKATCHEWAN RULES FOR CASES STATED.
5. "Within ten days after the receipt by the appellant of a case
stated By a justice, he shall file or cause it to be filed with the re-
gistrar of the supreme court en banc.
6. Upon sufficient cause for the delay being shown, the court
or judge, as the case may be, may hear and determine the matter,
although the case was not filed within said ten days.
7. The appellant shall state, in the notice of appeal given to
the other party, to the proceeding as required by subsection 2 of
section 761 of the Code, as amended by chapter 9 of 8 and 9 Ed-
ward VII (1909), whether the appeal is to the court en banc
or to a judge in chambers, and if to the court en banc the date of
the sittings of such court at which it will be heard.
8. When the case stated has been delivered to the registrar for
hearing by) the court en banc, the same shall be heard at the next
sittings of such court, which shall sit no sooner than fourteen
days after the delivery of the case stated to the registrar, and the
appellant shall give to the respondent ten days' notice in writing
of the time and place of hearing the appeal.
9. When the case has been delivered to the registrar for hear-
ing by a judge in chambers, the appellant shall, within five days
after such delivery, apply to the judge in chambers to fix a time
and place for the hearing of the appeal, and the judge shall
thereupon appoint a time and place for such hearing, and a copy
of such appointment shall be served upon the opposite party, or
as the judge may direct:
Provided that if such application be not made within said
period of five days, the judge may, upon sufficient cause for the
delay being shown, fix such time and place, notwithstanding that
said period may have elapsed.
10. If the court or a judge order the case to be sent back for
amendment, the same shall be forthwith amended by the justice,
in accordance with any directions given by the court or judge,
and transmitted when amended to the registrar.
11. An order of a judge, by whom a case stated has been
heard, shall have the same effect as an order made by the court
under section 765 of the Code, and the provisions of section 767
of the Code shall apply, where the decision is that of a judge, in
the same way as in case of a decision by the court, and any order
of the judge may be enforced by process issued out of the court.
12. In so far as these rules do not expressly make provision,
whenever a case stated is brought before a judge as hereinbefore
CKOWN rRAOTICE IN ALBERTA. 533
provided, the provisions of sections 761 to 767, both inclusive,
and of any amendments and additions thereto as to such a case
when before the court shall, mutatis mutandis, be applicable to
the proceedings on a case before the judge.
13, A justice before, or immediately after, delivering a case
stated to the appellant shall transmit the recognisance to the re-
gistrar.
14. Slight deviation from strict compliance with these rules
shall not invalidate any proceeding or thing, if the court or judge
sees fit to allow the same, either with or without requiring the
same to be corrected.
Crown Practice in Alberta.
Practicte and Procedure of the Supreme Court in Relation to Cer-
tiorari, Habeas Corpus and Prohibition, in Criminal Matters
and Costs in Such Matters.
Quashing a Conviction, Order, etc.
1. In all cases in which it is desired to move to quash a con-
viction, order, warrant or inquisition, the proceeding shall be
by notice of motion in the first instance instead of by certiorari
or by rule or by order nisi. [0. 1289.]
2. The notice of motion unless otherwise directed by a Judge
shall be served, at least seven days before the return day thereof,
upon the magistrate, justice or justices making the conviction or
order or issuing the warrant or the coroner making the inquisi-
tion, and also upon the prosecutor or informant, and upon the
Attorney-General, and upon the officer to whom, or upon the
Clerk of the office to which, the proceedings are required by law
to be transmitted, and it shall specify the objections intended to
be raised. [0. 1290.]
3. Upon the notice of motion shall be endorsed a notice in
the following form addressed to the magistrate, justice or jus-
tices, coroner, or officer or Clerk, as the case may be.
" You are hereby required forthwith after service hereof to
return to the Clerk of the Supreme Court at
(as the case may be) the conviction (or ,
as the case may be), herein referred to together with the inform-
ation and evidence, if any, and all things touching the matter as
534 ALBEETA gROWN RULES CONTINUED.
fully and entirely as they remain in your custody, together with
this notice.
"Date
To A. B., Magistrate at {or as the
case may he).
(Signed) • C. D.
Solicitor for the Applicant."
4. Upon receiving the notice so endorsed the magistrate, jus-
tice or justices, coroner, officer or Clerk, shall return forthwith
to the office mentioned therein the conviction, order, warrant or
inquisition together with the information and evidence, if any,
and all things touching the matter and the notice served upon
him with a certificate endorsed thereon in the following form: —
"Pursuant to the accompanying notice I herewith return to
this honorable Court the following papers and documents, that
is to say: —
(1) The conviction (or as the case may he) ;
(2) The information and the warrant issued thereon;
(3) The evidence taken at the hearing;
(4) (All other papers or documents touching the matter.)
"And I hereby! certify to this honorable Court that I have
above truly set forth all the papers and documents in my custody
and power relating to the matter set forth in the said notice of
motion."
(2) If the proceedings have been transmitted as required by
law by the magistrate, justice or justices or coroner, to the pro-
per officer, he shall in lieu of the certificate above set out certify
to the fact of such transmission together with the date thereof.
(3) If the proceedings have not been received by the officer
to whom or the Clerk of the office to which the same are by law
required to be transmitted, such officer or Clerk shall return a
certificate of the fact in lieu of the certificate above set out.
(4) A copy of this Rule shall appear upon or be annexed to
the notice of motion served upon the magistrate, justice or jus-
tices, coroner. Clerk or officer from whom the return is required.
[0. 1292.]
5. The certificate shall have the same effect as a return to a
writ of certiorari. [0. 1293.]
RULES OF GENERAL APPLICATION. 535
6. The motion shall not be entertained unless the return day
thereof be within six months after the conviction, order, war-
rant or inquisition and unless the applicant, if not the Attorney-
General, is shown to have deposited with the Clerk of the Court
to whom the certificate is required to be returned as security
for costs of the application the sum of $25.00 or such other sum
as a Judge may direct.
(2) The requirements of this Eule as to security for costs
shall also apply to motions for prohibition, mandamus or quo
warranto.
HABEAS CORPUS.
17. No writ of habeas corpus shall be necessary but an order
may be made to the like effect, which order shall have the like
consequences that the writ would have.
18. On the argument of a motion for habeas corpiis the Court
or a Judge may in its or his discretion direct an order to be
drawn up forthwith for the prisoner's discharge, which order
shall be a suflBcient warrant for any goaler or constable, or other
person, for his discharge.
19. The notice of motion for prohibition, certiorari, quo war-
ranto, mandamus or habeas corpus shall be returnable before a
Judge of the Supreme Court or the Appellate Division. [0.
1294.]
20. When the motion is made to a Judge an appeal shall lie
from his order to the Appellate Division of the Court by leave
of the Judge or of the Appellate Division, but subject to such
right of appeal his decision shall be final. [0. 1297.]
General.
21. In all proceedings under these Crown Practice Rules the
costs shall be in the discretion of the Court or Judge who shall
have full power to order either the applicant or the party against
whom the application is made, or any other party to the proceed-
ings, to pay such costs or any part thereof according to the re-
sult.
22. When costs are allowed the fees for all services shall be in
the discretion of the taxing officer, not exceeding $25.00; pro-
vided that the Judge may, in his discretion, allow an increased
fee in a proper case.
536 ALBEETA RULES AS TO CASES STATED.
23. Proceedings for attachment for contempt, for disobedience
to any writ, judgment or order issued or made under these Rules
shall lie and shall be the same as for disobedience to any writ,
judgment or order in a civil action.
24. When no other provision is made by these Rules the pro-
cedure and practice shall as far as may be, be regulated by the
Crown OflBce Rules for the time being in force in England, and
subject thereto and to these Rules the practice shall be the same
as in civil proceedings in the Supreme Court.
Forms.
25. The forms for the time being in use in England under the
said Crown Office Rules where applicable, and, where not appli-
cable, forms of the like character as near as may be, shall be used
in all proceedings except where otherwise ordered by these Rules.
Alberta Rules as to Cases Stated under Section 761 op
The Criminal Code.
1. An application to a Justice of the Peace to state and sign a
case under said section 761 shall be in writing and be delivered
to such Justice or left with some person for him at his place of
abode within seven days after the making of the conviction, or-
der, determination or other proceeding questioned. Such appli-
cation shall state the grounds upon which the proceeding is ques-
tioned, and whether the appeal is to be to the Appellate Division
or to a Judge.
2. Within fourteen days after such application has been so de-
livered or left for him the Justice shall state and sign and deliver
to the appellant a case setting forth the facts of the case and the
grounds on which the proceeding is questioned, stating:
(a) The substance of the information or complaint.
(b) The names of the prosecutor (or complainant) and de-
fendant.
(c) The date of the proceeding questioned.
(d) A copy of the evidence (if any) in full as taken before
the J. P.
(e) The substance of the conviction, order, determination or
other proceeding questioned.
(f) The grounds on which the same is questioned.
(g) The grounds upon which the Justice supports the pro-
ceeding questioned if the Justice sees fit to state any.
EULES AS TO STATED CASES CONTINUED. 537
(2) But the Justice shall not deliver said case until after the
appellant shall have entered into a recognizance and paid the
fees as provided by section 762.
3. In the event of the Justice declining or refusing to state a
case, the appellant may apply to the Court or Judge for a Eule
as provided by section 764.
4. Within twenty days after the delivery to the appellant of a
case stated by a Justice, the appellant shall file the same or cause
it to be filed.
(a) With the Eegistrar of the Court, or
(b) If he desires the matter to be heard and determined by
a Judge in Chambers with the Clerk of the Court at the
place where the appeal is intended to be heard, provided
that upon sufficient cause for the delay being shown the
Court or Judge, as the case may be, may hear and de-
termine the matter although the case was not delivered
within said twenty days.
5. When the case stated has been delivered to the Registrar
the same shall, unless the Court or a Judge otherwise orders, be
heard at the next sittings of the Appellate Division, which shall
be not sooner than fourteen days after the delivery of the case
stated to the Eegistrar, and the appellant shall give to the re-
spondent ten days' notice in writing of the time and place of
hearing the appeal.
6. When the case has been delivered to the Clerk of the Court,
the appellant shall within five days after such delivery apply to
the Judge in Chambers to fix a time and plate for the hearing
of the appeal, and the Judge shall thereupon appoint a time and
place for such hearing, and a copy of such appointment shall be
served upon the respondent, or as the Judge may direct, pro-
vided that if such application be not made within said period of
five days, the Judge may, upon sufficient cause for the delay be-
ing shown, fix such time and place notwithstanding that said
period may have elapsed.
7. The Justice "before or immediately after delivering a case
stated to the appellant shall transmit the recognizance to the pro-
per Clerk of the Court if the appeal is to a Judge, or to the Ee-
gistrar if the appeal is to the Appellate Division.
8. Slight deviation from strict compliance with these Eules
shall not invalidate any proceeding or thing if the Court or
Judge sees fit to allow the same, either with or without requiring
the same to be corrected.
538 THE CANADA EVIDENCE ACT.
CHAPTER XIV.
EVIDENCE.
This work would be incomplete if reference was not made to
the " Canada Evidence Act," R. S. C. 1906, ch. 145.
For the purpose of ready reference the first eighteen sections
of the Act are set out in full with notes of some Canadian cases,
and other references.
By sec. 1 the Act may he cited as the " Canada Evidence Act."
And by sec. 2 it is provided that Part I of the Act shall apply to
all criminal proceedings and other matters whatsoever respecting
which the Parliament of Canada has jurisdiction in this behalf.
Part II. of the Act applies to the taking of evidence in Can-
ada relating to proceedings in Courts out of Canada,
Witnesses.
3. A person shall not be incompetent to give evidence by reason of
interest or crime.
It was not until the year 1833 in England that the old rule
was abolished, whereby every person having an interest, no mat-
ter how small, in the result of legal proceedings was absolutely
barred from being a witness.
A rule grew up in England that a conviction for treason,
felony or misdemeanours of forgery^ perjury and conspiracy ren-
dered a witness incompetent.
It was not until 6 & 7 Vic, c, 85, s. 1, was passed that dis-
qualification for crime was abolished.
A prisoner under sentence of death is a competent witness on
a criminal trial since the abolition of attainder by sec. 1033 of the
Code. R. V. Hatch, (1909) 16 0. C. C. 196. R. y. Wehh, 11 Cox
133, to the contrary, was decided in 1867 under the English law
as it then stood.
Husband and Wife Competent Witnesses.
4. Every person charged with an offence, and, except as in this section
otherwise provided, the wife or husband, as the case may be, of the person
so charged, shall be a competent witness for the defence, whether the per-
son so charged is charged solely or jointly with any other person.
HUSBAND AND WIFE AS WITNESSES. 539
2. The wife or husband of a person charged with an offence against
any of the sections two hundred and two to two hundred and six inclusive,
two hundred and eleven to two hundred and nineteen inclusive, two hundred
and thirty-eight, two hundred and thirty-nine, two hundred and forty-four,
two hundred and forty-five, two hundred and ninety-eight, to three hundred
and two inclusive, three hundred and seven to three hundred and eleven
inclusive, three hundred and thirteen to three hundred and sixteen inclusive
of the Criminal Code, shall be a competent and compellable witness for the
prosecution without the consent of the person charged.
3. No husband shall be compellable to disclose any communication made
to him by his wife during their marriage, and no wife shall be compellable
to disclose any communication made to her by her husband during their
marriage.
4. Nothing in this section shall affect a case where the wife or husband
of a person charged with an offence may at common law be called as a
witness without the consent of that person.
5. The failure of the person charged, or of the wife, or husband of
suoh person, to testify, shall not be made the subject of comment by the
Judge, or by counsel for the prosecution.
By the first sub-section every person charged with an offence
shall be a competent witness on his own behalf or for the defence
on behalf of another, with whom he is charged jointly. And the
wife shall be a competent witness for the defence on behalf of her
husband if he be charged with an offence, and a husband may be
a witness on behalf of his wife if she is so charged.
The Judge or magistrate should always inform the accused
of his right to give evidence in his own behalf, where he is unre-
presented by counsel. The failure of the accused to give evidence
shall not be the subject of comment. (Sub-section 5.)
It is to be noted that the competency of husband and wife
to testify generally is limited to their giving evidence on behalf
of the defence. It is only the wives or husbands of persons
charged with offences enumerated in sub-see. 2 that are compelled
to testify on behalf of the prosecution, and the consent of the ac-
cused is not necessary. Their testimony in relation fo other of-
fences is not admissible for the prosecution without the consent
of the accused.
The accused cannot be called as a witness except on his own
application.
A co-defendant in a criminal case in which the defendants
are being tried jointly cannot be compelled to testify, but he may
volunteer to give evidence if he sees fit to do so.
But, where two prisoners are charged separately with the
same offence, one of them, after his committal for trial, may be
compelled to testify against the other: Ex parte Ferguson, 17 C.
C. C. 437. See also B. v. BMs, 10 C. C. C. 354.
540 WHEN HUSBAND AND WIFE JOINTLY ACCUSED.
Although the accused may not be called as a witness except
on his own application ; yet, if he has made a statement before the
justice on the preliminary inquiry under sec. 684 of the Code,
it is provided by sec. 1001 of the Code that the statement made
by the accused person before the justice may, if necessary, upon
the trial of such person, be given in evidence against him with-
out further proof thereof, unless it is proved that the justice pur-
porting to have signed the same did not in fact sign the same. See
the comments under sec. 684 in chapter 7, page 211.
Husband and Wife Jointly Accused.
Any voluntary statement made b^'i the accused person tending
to connect himself, either directly or indirectly, with the commis-
sion of the crime charged is admissible in evidence against the
accused whether such statement is or is not a " confession."
Where two prisoners (husband and wife) are being jointly
tried for murder, a voluntary admission made by the wife is evi-
dence against her only, and if it implicate a fellow-prisoner the
trial Judge should warn the jury that the statement is evidence
only against the person making it, and should not be considered
in weighing the evidence against the fellow-prisoner. Serrible,
persons jointly charged in such a case would have good ground
for applying for separate trials. R. v. Martin, (1905) 9 C. C.
C. 371.
'^The old and universally recognized rule of the English
criminal law — ^that no one can be compelled to criminate himself
— still prevails, and, therefore, in criminal cases no person accused
of an offence, whether indicted and tried alone or jointly with
others, can be required to give evidence, although he may do so
of his own accord."
"When a person on trial claims the right to give evidence on
his own behalf, he comes under the ordinary rule as to cross-
examination in criminal cases. He may be asked all questions
pertinent to the issue, and cannot refuse to answer those which
may implicate him. Under the new law, which protects him from
tbe effect of his own evidence in proceedings subsequently brought,
but does not do so in the case in which the evidence is given,
he may be convicted out of his own mouth. He cannot be com-
pelled to testify, but when he offers and gives his evidence he has
tp take the consequences." Wurtele, J., at p. 72, In K. v. Con-
nors et a/.. (18{)S) S (J. i}. C. 70. ' '
ACCUSED TESTIFYING IN HIS OWN BEHALF. 541
One co-defendant cannot be called byi another co-defendant,
and compelled to give evidence, but he may tender his evidence if
he sees fit. Ibid.
" The right and, if such it can be called, the privilege of the
accuse3~now is to tender himself as a witness. When he does
so, he puts himself forward as a creditable person and, except m
so far as he may be shielded by some statutory protection, he is
in the same situation as any other witness as regards liability
to and extent of cross-examination."^ Osler, J,, at p. 411, in E.
v. D'Aomt, 5 C. C. C. 407.
" It is, therefore, clear that evidence of these convictions by
the accused's own admissions was proper, and that it was open
to the learned Judge to draw therefrom any inferences, favourable
or unfavourable to the accused, of which it was justly susceptible."
OsLEE, J., ib., p. 413.
An accused person examined as a witness on his own behalf
may be cross-examined as to previous convictions against him;
the question is relevant to the issue as affecting the credibilityi of
the accused as a witness. Ihid.
Where one of two prisoners tried together gives evidence on
his own behalf and this incriminates his co-defendant, counsel for
the latter is entitled to cross-examine as well as counsel for the
prosecution. R. v. Hadwen, [1902] 1 K. B. 882.
The depositions of a witness taken at a coroner's inquest with-
out objection by him that his answers may tend to criminate
him, and who is subsequently charged with an offence, are receiv-
able in evidence against him at the trial. R. v. Williams, 28 0.
R. 5S3, overruling R. v. Hendershott, 26 0. E. 678.
. In prosecutions of- certain crimes, such as passing counterfeit
bills or coins, or uttering forged paper, or knowingly receiving
stolen goods, criminal motive may be shewn by proof of other
crimes of the same nature. In prosecutions for obtaining goods,
or money, on false pretences, it has generally been held that evi-
dence of other false pretences, made under similar circumstances
and at about the same time, is relevant. Generally in criminal
prosecutions evidence of a motive for the commission of the
alleged crime is relevant against the accused, and is admissible
R. V. Ellis, 6 B. & C. 145; R. v. WinJcworth, 4 C. & P. 444; R. v.
Long, 6 C. & P. 179; R. v. Geering, 18 L. J. M. 0. 215; R. v.
Clewes, 4 C. & P. 221, and see R. v. Law, (1909) 15 C. C. C. 38?.
y
i
543 DISCLOSURE OF COMMUNICATIONS DURING MARRIAGE.
So the want of any apparent motive is a relevant fact and
in favour of the accused and is admissible. Chamberlayne's Best
on Ev., s. 453.
When evidence of motive is relevant, the accused may testify
what his motive was in doing the alleged criminal act. See
Phipson, 5th ed., pp. 50, 122.
Facts tending to shew preparation on the part of the accused
to commit a criminal act are relevant and admissible to prove
the commission of the crime. Cham., Best on Evidence, s. 454.
So facts shewing capacity or opportunity to commit the
alleged crime are admissible as tending to render guilt probable.
Cham,, Best on Evidence, s. 453.
Disclosure of Communication During Marriage.
Neither husband nor wife is bound to disclose a communica-
tion received from the other during marriage. Sub-section 3, s.
4, supra.
A letter written by the accused to his wife and intrusted to,
but opened by, a constable, was held inadmissible. R. v. Pam^nter,
(1872), 12 Cox 177. And see Scott v. Com., 42 Am. St. Eep. 371,
and Taylor, 10th ed., s. 909a.
But conversations at which a third person was present or
which he overheard may be proved \)y\ him. R. v. Smithies, 5 C.
& P. 332 ; R. V. Simons, 6 C. & P. 540 ; R. v. Bartlett, 7 C. & P.
832.
And no protection exists with regard to communications made
Ijetween the parties before marriage, or to facts coming to their
knowledge during marriage, but from extraneous sources, and
the protected evidence will, if voluntarily given, be admissible.
O'Connor v. Marjoribanks, 4 M. & G. 435, overruling Beveridge
V. Minter, 1 C. & P. 364.
A divorced woman cannot be asked to disclose conversations
between her and her late husband. Monroe v. Ttinsleton, Peake
Add. Ca. 219.
A statement made by a wife in the presence of her husband is
receivable against him in evidence. R. v, MaUory, 13 Q. B. D.
33.
Though a woman lives with a man, uses his name, and passes
as his wife, she is a competent witness for or against him, such
circumstances going only to her credit and not to her competency.
ANSWERING INCRIMINATING QUESTIONS. 543
Bathews v, Galindo, 1 M. & Payne 565; Wells v, Fletcher, 5 C.
& P. 12.
On the trial of a man for the murder of his wife, her dying
declarations are evidence against him. John's Case, 1 East P.
C. 357; Woodcoch's Case, Leach C. 500.
By sec. 5 of the Canada Evidence Act, it is provided as follows :
Incriminating Questions.
5. No witness shall be excused from answering any question upon the
ground that the answer to such question may tend to criminate him, or may
tend to establish his liability to a civil proceeding at the instance of the
Crown or of any person.
2. If with respect to any question a witness objects^ to answer upon
the ground that his answer may tend to criminate him, or may tend to
establish his liability to a civil proceeding at the instance of the Crown or
of any person, and if but for this Act, or the Act of any provincial legisla-
ture, the witness would therefore have been excused from answering such
question, then although the witness is by reason of this Act, or by reason
of such Provincial Act, compelled to answer, the answer so given shall not
be used or receivable in evidence against him in any criminal trial, or other
criminal proceeding against him thereafter taking place, other than a prose-
cution for perjury in the giving of such evidence.
If, when called upon to testify, the witness does not object to
do so, on the ground that his answers mayi tend to criminate him,
his answers are receivable against him (except in the ease the sec-
tion provides for) in any criminal trial or other criminal pro-
ceeding against him thereafter. If, on the other hand, he does
object, he is protected. Osler, J., at p. 241, in R. v.. Clark,
(1901) 5 C. C. C. 235.
Relevant statements made by the accused without objection
on his examination for discovery in a civil action prior to the
criminal proceedings are admissible on the criminal trial.
The deposition of a judgment debtor upon his examination as
to means may be proved in evidence against him on a criminal
charge of disposing of his property in fraud of his creditors,
unless at the time of his examination he objected on the ground
that his answer might tend to criminate him. R. v. Van Meter,
(1906) 11 C. C. C. 207.
The communication between the prisoner's wife and the
prisoner's counsel was not a privileged communication in the sense
of being a communication from her husband. No evidence was
given that he knew of or authorized it. The only point reserved,
as I understand the case, is with respect to what the solicitor told
her. This statement was certainly not within his duty, and being
544 DEAF MUTES — WITNESS NOT SPEAKING ENGLISH.
calculated to further or conceal a criminal act, does not come
within the solicitor's privilege. Davies, J., at p. 152, in Gosselin
V. The King, (1903) 7 C. C. C. 139, 33 S. C. R. 255.
The privilege between solicitor and client cannot be invoked
to protect communications which are in themselves parts of a
criminal or unlawful proceeding. BulUvant v. The Atty.-Oenl.
for Victoria, [1901] A. C. at 201 ; R. v. Cox, 14 Q. B. D. 153.
Deaf Mutes.
The following provision in the Canada Evidence Act relates
to the evidence of mutes.
6. A witness who is unable to speak may give his evidence in any other
manner in which he can make it intelligible.
The evidence of a deaf mute may be taken either through an
interpreter who is conversant with the sign language of the deaf
and dumb, or byi writing the questions out and getting the wit-
ness to write the answers in reply. The oath can be administered
in the same way.
Foeeign Witness.
When it is sought to examine a witness through an interpreter
in a foreign tongue, the opposing counsel may be given leave first
to question the witness in English for the purpose of testing the
witness' competency to speak English.
Where a foreign witness examined in chief through an inter-
preter has some knowledge of English, the counsel entitled to
cross-examine may do so in English without the intervention of
the interpreter, and may also, if he chooses, put questions through
the interpreter. R. v. Wong On (No. 2), (1904) 8 C. C. 0. 343.
The trial Judge has no power to direct that an official inter-
preter appointed by the Government shall not act, because he is
objected to by counsel for the accused on the ground that he had
been actively engaged in assisting the prosecution at the Police
Court.
" I do not think you can find fault with the officers appointed
by the Crown for their business." Irving, J., in R. v. Wong On
(No. 1), (1904) 8 C. C. C. 342.
A conviction and commitment are not open to attack on
habeas corpus on ground of incompetency of the interpreter. The
EXPERT WITNESSES — ^PROOF OF HANDWRITING. 545
capacity of the interpreter is a question for the magistrate. R.
V. Meceklette, (1909) 15 C. C. C. 17.
Expert Witnesses.
7. Where, in any trial or other proceeding, criminal or civil, it is in-
tended by the prosecution or the defence, or by any party, to examine as
witnesses professional or other experts entitled according to the law or
practice to give opinion evidence, not more than five of such witnesses may
be called upon either side without the leave of the Court or Judge or person
presiding.
2. Such leave shall be applied for before the examination of any of
the experts who may be examined without sucli leave.
Proof of Handwriting.
8. Comparison of al disputed writing with any writing proved to the
satisfaction of the Court to J)e genuine shall be permitted to be made by
witnesses ; and such writings, and the evidence ofl witnesses respecting the
same, may be submitted to the Court and jury as evidence of the genuine-
ness or otherwise of the writing in dispute.
The opinions of skilled witnesses are admissible whenever the
subject is one upon which competency to form an opinion can
only be acquired by a course of special study or experience. Phip-
Bon, 5th ed., 363.
When the subject is one upon which the jury is as capable
of forming an opinion as the witness, the reason for .the admission
of such evidence fails and it will be rejected. Ihid.
An expert may give his opinion upon facts proved either by
himself or by other witnesses in his hearing at the trial, or upon
hypotheses based upon the evidence. An expert may refer to
text-books to refresh his memory, or to correct or confirm his
opinion, e.g., a doctor to medical treatises; a valuer to price lists;
a foreign lawyer to codes, text-writers and reports. Phipson, 5th
ed., 369-371.
As to comparison of handwriting, see Phipson, pp. 93, 94.
After all the evidence was in and the Judge had addressed the
jury, he allowed the jury to compare the admitted writing with
that which was disputed in order to draw their own conclusions
from a comparison of the two. On motion to set aside the con-
viction, the Supreme Court of Nova Scotia held that the learned
trial Judge was quite justified in the course he adopted. II. v.
Vixon (No. 2), (1897) 3 C. C. C. 220.
A prisoner cannot be compelled to provide a specimen of his
handwriting merely because he goes into the witness-box. It is
c.c.p. — 35
546 WHEN WITNESSES DEEMED TO BE ADVERSE.
true he renders himself liable to cross-examination and prosecu-
tion for perjury, if need be, but he is none the less an accused
person, and, therefore, ought not to be compelled to criminate
himself to any further extent than that which may strictly arise
out of the cross-examination. Hunter, C.J., in R. v. Orinder,
(1905) 10 C. C. C. 333.
Adverse Witness.
A witness is considered adverse when, in the opinion of the
Judge (whose decision is final), he bears a hostile animus to the
party calling him and not merely when his testimony contradicts
his proof. Greenough v. Eccles, 5 C. B. N". S. 786 ; Beed v. King,
30 L. T. 290, and other cases cited by Phipson, 5th ed., p. 469.
If a witness by his conduct shews that he is hostile to the
party calling him, the latter may, in the discretion of the Judge
(which is not open to appeal), lead, or rather cross-examine him,
but the matter is wholly for the Court, and a party, though called
by his opponent, cannot as of right be treated as hostile. Rice v,
Howard, 16 Q. B. D. 681; Coles v. Coles, L. E. 1 P. & D. 70;
Price V. Manning, 42 Chy. Div. 372.
And the following is the provision of the Canada Evidence
Act respecting adverse witnesses, and the right to contradict them.
9. A party producing a witness shall not be allowed to impeach his
credit by general evidence of bad character, but if the witness, in the opinion
of the Court, proves adverse, such party may contradict him by other
evidence, or by leave of the Court, may prove that the witness made at
other times a statement inconsistent with his present testimony : but before
such last mentioned proof can be given the circumstances of the supposed
statement, sufficient to designate the particular occasion, shall be men-
tioned to the witness, and he shall be asked whether or not he did make
such statement.
In spite of these statutes, a party may, as of right, without
obtaining such opinion or leave, contradic-t his own witness,
whether adverse in the above sense or not, by other evidence rele-
vant to the issue, and thus indirectly discredit him, e.g., where
an attesting witness denies his own signature. Phipson, 5th ed.,
469, and see R. v. EuicMnson, 8 C. C. C. 486.
"If, therefore, a witness makes a statement which the party
who has called him knows to be directly opposite to the truth,
unless the Court is of the opinion that the witness is hostile, that
he has shewn by his demeanour, or by the way in which he has
giving his evidence, that he has some ill-will or bad feeling against
the party who has called him. athough he cannot do so directly.
CROSS-EXAMINATION AS TO PREVIOUS STATEMENTS. 547
he map contradict him indirectly; that is to say, the party who
has produced him is not debarred in the interest of truth and
justice from producing other witnesses, not for the express purpose
of contradicting his witness, but to establish the truth by other
distinct and independent evidence." Wurtele, J., at p. 138, in
7?. V. Laurin, (1902) 6 C. C. C. 135.
Cross-examination as to Previous Statements.
10. Upon any trial a witness may be cross-examined as to previous
statements made by him in writing, or reduced to writing, relative to the
subject-matter of the case, without such writing being shewn to him : Pro-
vided that, if it is intended to contradict the witness by the writing, his
attention must, before such contradictory proof can be given, be called to
those parts of the writing which are to be used for the purpose of so con-
tradicting him ; and that the Judge, at any time during the trial, may
require the production of the writing for his inspection, and thereupon
make such use of it for the purposes of the trial as he thinks fit.
2. A deposition of the witness, purporting to have been taken before a
justice on the investigation of a criminal charge and to be signed by the
witness and the justice, returned to and produced from the custody of the
proper officer, shall be presumed prima facie to have been signed by the
witness.
A witness having been cross-examined as to a previous state-
ment relative to the subject matter of the case, and having denied
that she made it, proof can be given that she did indeed make it,
the particular occasion having been designated, and there is noth-
ing to prevent such evidence being given by witnesses who were
present and heard the statement made. The depositions before
the magistrate were admittedly lost, and it was held that a person
who was present at the examination could be called and testify as
;fco what the witness did say at the preliminary hearing. R. v.
Troop, (1898) 2 C. C. C. 22.
As to the reading of depositions taken on a preliminary in
the event of death, sickness or absence of the deponent, see sec.
999 of the Code. These depositions may be used against the per-
son on his prosecution for another charge. Section 1000. And
the statement of the accused before the justice on a preliminary
hearing may be given in evidence against him on his trial. Sec-
tion 1001.
Cross-examination as to Previous Oral Statements.
11. If a witness upon cross-examination as to a former statement made
by him relative to the subject-matter of the case, and inconsistent with his
present testimony, does not distinctly admit that he did make such state-
ment, proof may be given that he did in fact make it ; but before such
proof can be given the circumstances of the supposed statement, sufficient
to designate the particular occasion, shall be mentioned to the witness, and
he shall be asked whether or not he did make such statement.
54.8 CROSS-EXAMINATION AS TO PREVIOUS CONVICTIONS.
On a charge of forcible entr}., evidence relating to the title
of land is not admissible and a statement in the cross-examina-
tion of the accused denying that he had previously stated that he
had sold the land to the complainant is not " a statement relative
to the subject matter of the case," but only as to a collateral
matter, and evidence to contradict the denial of the accused was
improperly received. R. v. Walker, (1906) 13 C. C. C. 197.
Cross-examination as to Previous Convictions.
12. A witness may be questioned as to whether he has been convicted
of any offence, and upon being so questioned, if he either denies the fact or
refuses to answer, the opposite party may prove such conviction.
2. The conviction may be proved by producing, —
(o) a certificate containing the substance and effect only, omitting
the formal part, of the indictment and conviction, if it is for an
indictable offence, or a copy of the summary conviction, if for an
offence punishable upon summary conviction, purporting to be signed
by the clerk of the Court or other oflScer having the custody of the
records of the Court in which the conviction, if upon indictment, was
had, or to which the conviction, if summary, was returned ; and,
(&) proof of identity.
As to accused who gives evidence on his own behalf being
cross-examined as to previous convictions: see R. v. D'Aoust,
(1902) 5 C. C. C. 407, supra.
Previous convictions as a rule may not be proved against the
accused until after verdict. This rule does not apply when, (1)
they form an essential ingredient of the offence, (3) or are ten-
dered to shew guilty knowledge, or (3) to rebut good character,
or (4) to contradict the defendant's denial of the conviction, or
(5) to prove public rights, or (6) to prove a plea of res judicata.
See R. V. Edwards, 13 C. C. C. 303.
Oaths and Affirmations.
13. Every Court or Judge, and every person having, by law or con-
sent of parties, authority to hear and receive evidence, shall have power to
administer an oath to every witness who is legally called to give evidence
before that Court, Judge or person.
See Chapter YII., page 301.
Affirmation Instead of Oath.
14. If a person called or desiring to give evidence, objects on grounds
of conscientious scruples, to take an oath, or is objected to as incompetent
to take an oath, such person may make the following affirmation : " I
solemnly affirm that the evidence to be given by me shall be the truth, the
whole truth and nothing but the truth."
2. Upon the person making such solemn affirmation his evidence shall
be taken and have the same effect as if taken under oath.
AFFIRMATIONS EVIDENCE OF CHILD JUDICIAL NOTICE. 549
A mere statement of the witness, that he prefers to affirm and
considers it optional, is insufficient to make legal his testimony
given on affirmation. He must "object on grounds of con-
scientious scruples" to take the oath. R. v. DeaJcin, 19 C. C.
C. 62.
See also Ourry v. R., 22 C. C. C. 191, 48 S. C. E. 532, the
effect of which is given at p. 203, supra.
Affirmation by Deponent.
15. If a person required or desiring to make an affidavit or deposition
in a proceeding or on an occasion whereon or touching a matter respecting
which an oath is required or is lawful, whether on the taking of office or.
-otherwise, refuses or is unwilling to be sworn, on grounds of conscientious
scruples, the Court or Judge, or other officer or person qualified to take
affidavits or depositions, shall permit such person, instead of being sworn,
to make his solemn affirmation in the words following, viz. : " I, A. B., do
solemnly affirm, etc." ; which solemn affirmation shall be of the same force
and effect as if such person had taken an oath in the usual form.
2. Any witness whose evidence is admitted or who makes an affirmation
under this or the last preceding section shall be liable to indictment and
punishment for perjury in all respects as if he had been sworn.
Evidence of a Child.
16. In any legal proceeding where a child of tender years is offered as
a witness, and such child does not, in the opinion of the Judge, justice or
other presiding officer, understood the nature of an oath, the evidence of
such child may be received, though not given upon oath, if. in the opinion
of the Judge, justice or other presiding officer, as the case may be, such
child is possessed of sufficient intelligence to justiiV the reception of the
evidence, and understands the duty of speaking the truth.
2. No case shall be decided upon such evidence alone, and such evidence
must be corroborated by some other material evidence.
See remarks and cases on this subject, ante, pp. 203, 204.
Judicial Notice.
17. Judicial notice shall be taken of all Acts of the Imperial Parlia-
ment, of all ordinances made by the Governor in Council, or the Lieutenant
Governor in Council of any province or colony which, or some portion of
which, now forms or hereafter may form part of Canada, and of ah the Acts
of the legislature of any such province or colony, whether enacted before or
after the passing of the British North America Act, 1867.
18. Judicial notice shall be taken of all public Acts of the Parlia-
ment of Canada without such Acts being specially pleaded.
550 LIMITATION OP PROSECUTIONS AND ACTIONS.
CHAPTER XV.
Limitation of Prosecutions and Actions.
Part XXIV. of the Code.
These sections of the Code, 1140 to 1157, are added for re-
ference and without any notes or comments.
Prosecutions for Crimes.
1140. No prosecution for an offence against this Act, or action for
penalties or forfeiture, shall be commenced, —
(o) after the expiration of three years from the time of its commis-
sion if such offence be
(i) treason, except treason by killing Hig Majesty, or where the
overt act alleged is an attempt to injure the person of His Majesty
— section seventy-four,
(ii) treasonable offences — section seventy-eight,
(iii) any offence against Part VII relating to the fraudulent mark-
ing of merchandise : or,
(6) after the expiration of two years from its commission it such
offence be
(i) a fraud upon the Government — section one hundred and fifty-
eight,
(ii) a corrupt practice in municipal affairs — section one hundred and
sixty -one.
(iii) unlawf?ully solemnizing marriage — section three hundred and
eleven ; or,
(c) after the expiration of one year from its commission if such
offence be,
(i) opposing reading of Riot Act and continuing together after
proclamation — section ninety-two,
(ii) refusing to deliver weapon to justice — section one hundred and
twenty-six,
(iii) coming armed near public meeting — section one hundred and
twenty-seven,
(iv) lying in wait near public meeting— section one hundred and
twenty-eight,
(v) seduction of girl under sixteen — section two hundred and
eleven,
(vi) seduction under promise of marriage — section two hundred and
twelve,
(vii) seduction of a ward or employee — section two hundred and
thirteen.
(viii) parent or guardian procuring defilement of girl — section two
hundred and fif'teen.
(ix) unlawfully defiling women, procuring, etc. — section two hundred
and sixteen,
(x) householders permitting defilement of girls on their premises —
section two hundred and seventeen : or,
LIMITATION OF TIME FOR PROSECUTIONS. 551
(d) after the expiration of six months from its commission if the
offence be
(i) unlawfully drilling — section ninety-eight,
(ii) being unlawfully drilled — section ninety -nine,
(iii) having possession of offensive weapons for purposes dangerous
to the public peace — section one hundred and fifteen,
(iv) proprietor ofi newspaper publishing advertisement offering
reward for recovery of stolen property — section one hundred and
eighty-three, paragraph (d) ; or,
(e) after the expiration of three months from its commission if the
offence be
(i) cruelty to animals — sections five hundred and forty-two and five
hundred and forty-three,
(ii) railways and vessels violating provisions relating to conveyance
of cattle — section five hundred and forty-four,
(iii) refusing peace officer or constable admission — section five
hundred and forty-five ; or,
(/) after the expiration of one month from its commission if the offence
be improper use of offensive weapons under sections one hundred and
sixteen and one hundred and eighteen to one hundred and twenty-
four inclusive.
2. No person shall be prosecuted, under the provisions of section
seventy-four or seventy-eight of this Act, for any overt act of treason
expressed or declared by open and advised speaking unless information of
such overt act, and of the words by which the same was expressed or de-
clared, is given upon oath to a justice within six days after the words are
spoken and a warrant for the apprehension of the offender is issued within
ten days 'after such information is given.
1141. No action, suit or information shall be brought or laid for any
penalty or forfeiture under any Act, except within two years after the
cause of action arises or after the offence for which such penalty or for-
feiture is imposed is committed, unless the time is otherwise limited by «ny
Act or by law.
1142. In the case of any offence punishable on summary conviction,
if no time is specially limited for making any complaint, or laying any
information, in the Act or law relating to the particular case, the com-
plaint shall be made, or the information shall be laid, within six months
from the time when the matter of complaint or information arose, except
in the North-west Territories and the Yukon Territory, in all which Terri-
tories the time within which such complaint may be made, or such informa-
tion laid, shall be twelve months from the time when the matter of the
complaint or information arose.
Actions against Persons Administering the Criminal Law.
1143. Every action and prosecution against any person for anything
purporting to be done in pursuance of any Act of the Parliament of Canada
relating to criminal law, shall, unless otherwise provided, be laid and tried
in the district, county or other judicial division, where the act was com-
mitted, and not elsewhere, .and shall not be commenced except within six
months next after the act committed.
1144. Notice in writing of such action and of the cause thereof, shall
be given to the defendant one month at least before the commencement of
the action.
1145. In any such action the defendant may plead the general issue,
and give the provisions of this title and the special matter in evidence at
any trial had thereupon.
1146. No plaintiff shall recover in any such action if tender of suffi-
cient amends is made before such action brought, or if a sufficient sum of
552 ACTIONS AGAINST JUSTICES.
money is paid into CJourt by or on behalf of the defendant after such action
brought
1147. If such action is commenced after the time limited as aCore-
said for bringing the same, or is brought or the venue laid in any other
place than as aforesaid, a verdict shall be found or judgment shall be giyen
for the defendant ; and thereupon, or if the plaintiff becomes nonsuit, or
discontinues any such action after issue joined, or if upon demurrer, or
otherwise judgment is given against the plaintiff, the defendant shall, in
the discretion of the Court, recover his full costs as between solicitor and
client, and shall have the like remedy for the same as any defendant has
by law in other cases.
2. Although a verdict or judgment is given for the plaintiff in any such
action, such plaintiff shall not have costs against the defendant, unless the
Judge before whom the trial is had certifies his approval of the action.
1148. Nothing herein shall prevent the effect of any Act in force in
any province of Canada, for the protection of justices or other officers from
vexatious actions for things purporting to be done in the performance of
their duty.
1149. Every action brought against any commissioner under Part IIL
of this Act or any justice, constable, peace officer or other person, for any-
thing done in pursuance of the said Part, shall be commenced within six
months next after the alleged cause of action arises ; and the venue shall
be laid or the action instituted in the district or county or place where the
cause of action arose ; and the defendant may plead the general issue and
give this Act and the special matter in evidence.
2. If such action is brought after the time limited, or the venue is laid
or the action brought in any other district, county or place than in this
section prescribed, the judgment or verdict shall be given for the defendant ;
and in such case, or if the judgment or verdict is given for the defendant
on the merits, or if the plaintiff becomes non-suited or discontinues after
appearance is entered, or has judgment rendered against him on demurrer,
the defendants shall be entitled to recover double costs.
1150. All actions for penalties arising under the provisions of section
eleven hundred and thirty-four shall be commenced within six months next
after the cause of the action accrues, and the same shall be tried in the dis-
trict, county or place wherein such penalties have been incurred ; and if a ver-
dict or judgment passes for the defendant, or the plaintiff becomes non-suit,
or discontinues the action after issue joined, or if upon demurrer or other-
wise, judgment is given against the plaintiff, the defendant sb^ll, in the
discretion of the Court, recover his costs of suit, as between solicitor and
client, and shall have the like remedy for the same as any defendant has
by law in other cases.
1151. No action or proceeding shall be commenced or had against
a justice for enforcing a conviction, order or determination affirmed,
amended or made by the Court under section seven hundred and sixty-five.
WHEN ARRESTS MAY BE MADE WITHOUT WARRANT. 553
CHAPTER XVI.
Arrests without Warrant.
Part XIII. of the Code.
There is also here added for reference sees. 646 to 652, being
the provisions of the Code relating to arrests without warrant.
And also are added sees. 30 to 47 inclusive, all relating to arrest
by peace officers and others with and without warrant.
Arrests without Warrant.
646. Any person may arrest without warrant any one who is found
committing any of the offences mentioned in sections, —
(a) seventy-four, treason ; seventy-six, accessories after the fact to
treason ; seventy-seven, seventy-eight and seventy-nine, treasonable
offences ; eighty, assaults on the King ; eighty-one, inciting to mutiny ;
eighty-five and eighty-six, information illegally obtained or com-
municated ;
(6) ninety-two, offences respecting the reading of the Riot Act; ninety-
six, riotous destruction of property ; ninety-seven, riotous' damage to
property ;
(c) one hundred and twenty-nine, administering, taking or procuring
the taking of oath to commit certain crimes ; one hundred and
thirty, administering, taking or procuring the taking of other unlaw-
ful oaths ;
(d) one hundred and thirty-seven, piracy : one hundred and thirty-
eight, piratical acts ; one hundred and thirty-nine, piracy with
violence ;
(e) one hundred and eighty-five, being at largfe while under sentence
of imprisonment ; one hundred and eighty-seven, breaking prison ; one
hundred and eighty-nine, escape from custody or from prison ; one
hundred and ninety, escape from lawful custody;
(/) two hundred and two, unnatural offence ;
(g) two hundred and sixty-three, murder; two hundred and sixty-four,
attempt to murder ; two hundred and sixty-seven, being accessory
after the fact to murder ; two hundred and sixty-eight, manslaughter ;
two hundred and seventy, attempt to commit suicide;
(h) two hundred and seventy -three, wounding with intent to do bodily
harm ; two hundred and seventy-four, wounding ; two hundred and
seventy-six. stupefying in order to commit an indictable offence ; two
hundred and seventy-nine and two hundred and eighty, injuring or
attempting to injure by explosive substances ; two hundred and eighty-
two, intentionally endangering persons on railways ; two hundred and
eighty-three, wantonly endangering persons on railways ; two hundred
and eighty-six, preventing escape from wreck ;
(i) two hundred and ninety-nine, rape : three hundred, attempt to com-
mit rape ; three hundred and one, defiling children under fourteen ;
(7) three hundred and thirteen, abduction of a woman ;
(k) three hundred and fifty-eight, theft by agents and others ; three
hundred and fifty-nine, theft by clerks, servants and others ; three
hundred and sixty, theft by tenants and lodgers ; three hundred and
sixty-one, theft of testamentary instruments ; three hundred and
554 AKEESTS WITHOUT WARRANT.
sixty-two, theft of documents of title ; three hundred and sixty-three,
theft of judicial or official documents ; three hundred and sixty-four,
three hundred and sixty-five and three hundred and sixty-six, theft
of postal matter ; three hundred and sixty-seven, theft of election
documents ; three hundred and sixty-eight, theft of railway tickets ;
three hundred and sixty-nine, theft of cattle ; three hundred and
seventy-one, theft of oysters ; three hundred and seventy-two, theft
of things fixed to buUdings or land ; three hundred aud seventy-nine,
stealing from the person ; three hundred and eighty, stealin? in dwell-
ing-houses ; three hundred and eighty-one, stealing by picklocks, etc. ;
three hundred and eighty-two, stealing from ships, docks, wharfs or
quays ; three hundred and eighty-three, stealing wreck ; three hundred
and eighty-four, stealing on railways ; three hundred and eighty-six,
stealing things not otherwise provided for; three hundred and eighty -
seven, stealing where value over two hundred dollars ; three hundred
and eighty-three, stealing in manufactories ; three hundred and ninety,
criminal breach of trust ; three hundred and ninety-one, public ser-
vant refusing to deliver up chattels, money, valuables, security, hooks,
papers, accounts or documents ; three hundred and ninety-six, destroy-
ing, cancelling, concealing or obliterating any documents of title ;
three hundred and ninety-eight, bringing stolen property into Canada ;
(0 three hundred and ninety-nine, receiving property obtained by crime ;
(«i) four hundred and ten, personation of certain persons;
(n) four hundred and forty -six, aggravated robbery ; four hundred and
forty-seven, robbery ; four hundred and forty-eight, assault with in-
tent to rob ; four hundred and forty-nine, stopping the mail ; four
hundred and fifty, compelling execution of documents by force ; four
hundred and fifty-one, sending letter demanding with menaces ; four
hundred and fifty-two, demanding with intent to steal ; four hundred
and fifty -three, extortion by certain threats ;
(o) four hundred and fifty-five, breaking place of worship and commit-
ting an indictable offence ; four hundred and fifty-six, breaking place
of worship with intent to commit an indictable offence ; four hundred
and fifty-seven, burglary ; four hundred and fifty-eight, housebreak-
ing and committing an indictable offence ; four hundred and fifty-
nine, housebreaking with intent to commit an indictable offence ; I'our
hundred and sixty, breaking shop and committing an indictable
offence ; four hundred and sixty-one, breaking shop with intent to
commit an indictable offence ; four hundred and sixty-two. being
found in a dwelling-house by night ; four hundred and sixty-three,
being armed, with intent to break a dwelling-house ; four hundred
and sixty-four, being disguised or in possession of housebreaking
instruments ;
(p) four hundred and sixty-eight, four hundred and sixty-nine and
four hundred and seventy, forgery ; four hundred and sixty-seven,
uttering forged documents ; four hundred and seventy-two, counter-
feiting seals ; four hundred and seventy-eight, using probate obtained
by forgery or perjury ; five hundred and fifty, possessing forged bank
notes ;
(g) four hundred and seventy-one, making, having or using instru-
ment for fiorgery or having or uttering forged bond or undertaking ;
four hundred and seventy-nine, counterfeiting stamps ; four hundred
and eighty, injuring or falsifying registers ;
(r) one hundred and twelve, attempt to damage by explosives; five
hundred and ten. mischief ; five hundred and eleven, arson ; five
hundred and twelve, attempt to commit arson : five hundred and
thirteen, setting fire to crops; five hundred and fourteen, attempt-
ing to set fire to crops ; five hundred and seventeen, mischief on rail-
ways ; five hundred and twenty, mischief to mines ; five hundred and
twenty-one, injuries to electric telegraphs, magnetic telegraphs, elec-
tric lights, telephones and fire alarms ; five hundred and twenty-two,
wrecking ; five hundred and twenty-three, attempting to wreck ; five
hundred and twenty-six, interfering with marine signals ;
WHEN ARRESTS MAY BE MADE WITHOUT WARR^^XT. 555
(«) five hundred and fifty-two, counterfeiting gold and silver coin ; five
hundred and fifty-six, making instruments for coining ; five hundred
and fifty-eight, clipping current coin ; five hundred and sixty, pos-
sessing clippings of current coin ; five hundred and sixty-two, count-
erfeiting copper coin ; five hundred and sixty-three, counterfeiting
foreign gold and silver coin ; five hundred and sixty-seven, uttering
copper coin not current.
647. A peace officer may arrest, without warrant, any one who has
committed any of the offences mentioned, in the sections in the last preced-
ing section mentioned or in sections, —
(o) four hundred and five, obtaining by false pretense ; four hundred
and six, obtaining execution of valuable securities by false pretense ;
(6) five hundred and twenty-five. Injuring dams, etc., or blocking
timber channel ; five hundred and thirty-six, attempting to injure or
poison cattle ;
(c) five hundred and forty-two, cruelty to animals; five hundred and
forty-three, keeping cock-pit;
(d) five hundred and fifty-five, exporting counterfeit coin; five hundred
and sixty-one, possessing counterfeit current coin ; five hundred and
sixty-three, paragraph (b), bringing into Canada or possessing
counterfeit current foreign gold or silver coin ; five hundred and
sixty-three, paragraph (d), counterfeiting foreign copper coin.
648. A peace ofiicer may arrest, without warrant, any one whom he
finds committing any criminal offence.
2. Any person may arrest, without warrant, any one whom he finds
committing any criminal offence by night.
649. Any one may arrest without warrant a person whom he, on rea-
sonable and probable grounds, believes to have committed a criminal offence
and to be escaping from, and to be freshly pursued by, those whom the
person arresting, on reasonable and probable grounds, believes to have law-
ful authority to arrest such person.
650. The owner of any property on or with respect to which any per-
son is found committing any criminal offence, or any person authorized by
such owner, may arrest, without warrant, the person so found, who shall
forthwith be taken before a justice to be dealt with according to law.
651. Any ofiicer in His Majesty's service, any warrant or petty
officer in the navy, and any non-commissioned officer of marines may arrest
without warrant any person found committing any of the offences mentioned
in section one hundred and forty-one.
652. Any peace officer may, without a warrant, take into custody
any person whom he finds lying or loitering in any highway, yard or other
place during the night, and whom he has gopd cause to suspect of having
committed, or being about to commit, any indictable offence, and may detain
such person until he can be brought before a justice of the peace, to be dealt
with according to law ;
(o) No person who has been so apprehended shall be detained after
noon of! the following day without being brought before a justice of Ihe
peace ;
652A. Any peace officer may arrest without a warrant any person
whom he has good cause to suspect of having committed or being about to
commit any of the offences mentioned in section 216.
Arrests Generally, secs. 30 to 47.
30. Every peace officer who. on reasonable and probable grounds,
believes that an offence for which the offender may be arrested without
warrant has been committed, whether it has been committed or not, and
556 ARRESTS GENERALLY — SECTIONS 30 TO 47.
who, on reasonable and probable grounds, believes that any person has com-
saitted that offence, is justified in arresting such person without warrant,
whether such person is guilty or not.
31. Every one called upon to assist a peace oflScer in the arrest of a
person suspected of having committed such offence is justified in assisting,
if he knows that the person calling on him for assistance is a peace officer,
and does not know that there is no reasonable ground for the suspicion.
32. Every one is justified in arresting without warrant any person
whom he finds committing any offence for which the offender may be
arrested without warrant, or may be arrested when found committing.
33. If any offence for which the offender may be arrested without war-
rant has been committed, any one who, on reasonable and probable grounds,
believes that any person is guilty of that offence is justified in arresting
him without warrant, whether such person is guilty or not.
34. Every one is protected from criminal responsibility for arresting
without warrant any person whom he, on reasonable and probable grounds,
believes he finds committing by night any offence for whlcti the offender may
be arrested without warrant.
35. Every peace officer is justified in arresting without warrant any
person whom he finds committing any offence.
36. Every one is justified in arresting without warrant any person
whom he finds by night committing any offence.
2. Every peace officer is justified in arresting without warrant any
person whom he finds lying or loitering in any highway, yard or other place
by night, and whom he has good cause to suspect of having committed or
being about to commit any offence for which an offender may be arrested
without warrant.
37. Every one is protected from criminal responsibility for arresting
without warrant any person whom he, on reasonable and probable grounds,
believes to have committed an offence and to be escaping from and to be
freshly pursued by those Avhom he, on reasonable and probable grounds,
believes to have lawful authority to arrest that person for such offence.
38. Nothing in this Act shall take away or diminish any authority
given by any Act in force for the time being to arrest, detain or put any
restraint on any person.
39. Every one executing any sentence, warrant or process, or in mak-
iny any arrest, and every one lawfully assisting him, is justified, or pro-
tected from criminal responsibility, as the case may be, in using such force
as may be necessary to overcome any force used in resisting such execution
or arrest, unless the sentence, process or warrant can be executed or the
arrest effected by reasonble means in a less violent manner.
(The corresponding section (31) of the Criminal Code, 1892, after the
words " every one " in the first line, had the words " justified or protected
from criminal responsibility in " which have been dropped, apparently by
an oversight, in the 1906 reprint. The meaning is not very clear without
the omitted words. — Ed.)
40. It is the duty of every one executing any process or warrant to
have it with him, and to produce it if required.
2. It is the duty of every one arresting another, whether with or with-
out warrant, to give notice, where practicable, of the process or warrant
under which he acts, or of the cause of the arrest.
3. A failure to fulfil either of the two duties last mentioned shall not
of itself deprive the person executing the process or warrant or his assist-
ants, or the person arresting, of protection from criminal responsibility, but
shall be relevant to the inquiry whether the process or warrant might not
have been executed, or the arrest effected, by reasonable means in a less
violent manner.
41. Every peace officer proceeding lawfully to arrest, with or without
warrant, any person for any offence for which the offender may be arrested
AERESTS — ESCAPES — BREACH OF THE PEACE. 557
without warrant, and every one lawfully assisting in such arrest, is justi-
fied, if the person to be arrested takes to flight to avoid arrest, in using
such force as may be necessary to prevent his escape by such flight, unless
such escape can be prevented by reasonable means in a less violent manner.
42. Every private person proceeding lawfully to arrest without war-
rant any person for any offence for which the offender may be arrested
without warrant, is justified, if the person to be arrested takes to flight to
avoid arrest, in using such force as may be necessary to prevent his escape
by flight, unless such escape can be prevented by reasonable means in a less
violent manner, if such force is neither intended nor likely to cause death
or grievous bodily harm.
43. Every one proceeding lawfully to arrest any person for any cause
other than an offence in the last section mentioned is justified, if the per-
son to be arrested takes to flight to avoid arrest, in using such force as
may be necessary to prevent his escape by flight, unless such escape can be
prevented by reasonable means in a less violent manner, if such force
is neither intended nor likely to cause death or grievous bodily harm.
44. Preventing escape or rescue after arrest. — Every one who
has lawfully arrested any person for any offence for which the offender
may be arrested without warrant is protected from criminal responsibility
in using such force in order to prevent the rescue or escape of the person
arrested as he believes, on reasonable grounds, to be necessary for that pur-
pose.
45. Every one who has lawfiully arrested any person for any cause
other than an offence for which the offender may be arrested without war-
rant is protected from crim,inal responsibility in using such force in order
to prevent his escape or rescue as he believes, on reasonable grounds, to be
necessary for that purpose ; Provided that such force is neither intended
nor likely to cause death or grievous bodily harm.
46. Preventing breach of the peace. — Every one who witnesses a
breach of the peace is justified in interfering to prevent its continuance or
renewal and may detain any person committing or about to join in or
renew such breach of the peace, in order to give him into the custody of a
peace officer: provided that the person interfering uses no more force than
is reasonably necessary for preventing the continuance or renewal of such
breach of the peace, or than is reasonably proportioned to the danger to
be apprehended from the continuance or renewal of such breach of the
peace.
47. Every peace officer who witnesses a breach of the peace and every
person lawfully assisting him, is justified in arresting any one whom he
finds committing such breach of the peace, or whom he, on reasonable and
probable grounds, believes to be about to join in or renew such breach of
the peace.
2. Every peace ofiicer is justified in I'eceiving into custody any person
given into his charge as having been a party to a breach of the peace by
one who has, or whom such peace officer, upon reasonable and probable
grounds, believes to have, witnessed such breach of the peace.
558 FOEMS PRESCRIBED IN THE CODE.
CHAPTER XVII.
Forms Prescribed by Part XXV. of the Code.
1152. The several forms in this Part, varied to suit the case, or forms
to the like effect, shall be deemed good, valid and suflBcient in cases thereby
respectively provided tbr; and may, when made for one class of officials,
be varied so as to apply to any other class having the same jarisdiction.
FOBM 1.
(Section 629.)
Information to obtain a Search Warrant.
Canada,
Province of ,
County of
The information of A. B., of in the said county (yeoman),
taken this day of , in the year before me, J. S.,
Esquire, a justice of the peace, in and for the district (or county, etc.).
of , who says that (descrihe things to he searched for and
offence in respect of which search ia made), and that he has just and rea-
sonable cause to suspect, and suspects, that the said goods and chattels,
or some part of them, are concealed in the (dwelling-house, etc.) of C. D..
of , in the said district (or county, etc.), (here add the causes
of suspicion, whatever they may be) : Wherefore (he) prays that a search
warrant may be granted to him to search the (dwelling-house, etc.), of the
said C. D., as aforesaid, for the said goods and chattels so stolen, taken
and carried away as aforesaid (or as the case may be).
Sworn (or affirmed) before me the day and year first above mentioned,
at in the said county of
J. S.,
J. P., (name of district or county, etc.).
FOBM 2.
(Section 630.)
Warrant to Search.
Canada, ]
Province of . '^ t
County of . J
To all or any of the constables and other peace officers in the said county
of
Whereas it appears on the oath of A. B.. of . that there is
reason to suspect that (descrihe things to he searched for and offence in
respect of irhich search is made) are concealed in at • .
SEARCH WARRANT — INFORMATION AND COMPLAINT. 559
This is, therefore, to authorise and require you to enter between the
hours of {as the justice shall direct) into the said premises, and to search
for the said things, and to bring the same before me or some other justice.
Dated at , in the said county of this day
of , in the year
J. S.,
J. P., {name of county).
To of
FOBM 2a.
(Section 629A.)
Backing of Search Warrant.
Canada,
Province of ,
County of
" Whereas proof upon oath has this day been made before me, a
justice of the peace in and for the said county of , that the
name of J. S. to the within warrant subscribed is of the handwriting of
the justice of the peace within mentioned, I do, therefore, hereby authorize
W. T., who brings me this warrant and all other persons to whom this
warrant was originally directed or by whom it may be lawililly executed,
and also all peace officers of the said county of , to execute the
same within the said county of
"J. S..
"J. P., {name of county)."
FOBM 3.
(Section 654.)
Information and Complaint for an Indictable Offence.
Canada,
Province of
County of
The information and complaint of C. D., of (yeoman), taken
this day of , in the year , beftore the under-
gigned {one) of His Majesty's justices of the peace in and for the said
county of , who saith that {etc., stating the offence).
Sworn before {me), the day and year first above mentioned, at
J. S.,
J. P., (name of county).
Form 4.
(Section 656).
Warrant to Apprehend a Person Charged with an Indictable Offence Com-
mitted on the High Seas or Abroad.
For offences committed on the high seas the tvarrant may be the samt
as in ordinary cases, but describing the offence to have been committed "on
the high seas, out of the body of any district or county of Canada arid
within the jurisdiction of the Admiralty of England."
560 SUMMONS — WABRANT OF ARREST.
For offences committed abroad for which the parties may be indicted
in Canada, the warrant also may be the same as in ordinary cases, but
describing the offence to have been committed " on land out of Canada, to
wit: at in the Kingdom of , or, at , in
the Island of , in the West Indies, or at , in the
East Indies," or as the case may be.
FOBK 5.
(Section 658.)
Summons to a Person Charged toith an Indictable Offence.
Canada,
Province of
County of
To A. B., of , (labourer) :
Whereas you have this day been charged before the undersigned
, a justice of the peace in and for the said county of
for that you on , at , (stating shortly the offence) :
These are therefore to command you, in His Majesty's name, to be and
appear before (me) on , at o'clock in the (fore)
noon, at , or before such other justice or justices of the peace
for the same county of , as shall then be there, to answer to
the said charge, and to be further dealt with according to law. Herein fail
not.
Given under (my) hand and seal, this day of ,
in the year , at , in the county afioresaid.
J. S., [SEAL.]
J. p., (name of county).
Form 6.
(Section 659.)
Warrant in the first instance to apprehend a Person charged with an
Indictable Offence.
Canada,
Province of ,
County of
To all or any of the constables and other peace officers in the said county
of
Whereas A. B., of , (labourer), has this day been charged
upon oath before the undersigned , a justice of the peace in
and for the said county of . for that he, on , at
, did (etc., stating shortly the offence) : These are, therefore,
to command you, in His Majesty's name, forthwith to apprehend the said
A. B., and to bring him before (me) or some other justice of the peace in
and for the said county of , to answer unto the said charge,
and to be further dealt with according to law.
Given under (my) hand and seal, this day of ,
in the year , at , in the county aforesaid.
J. S., [SEAL.]
J. P., (name of county).
WARRANT WHEN SUMMONS DISOBEYED. 561
FOBM 7.
(Section 660.)
Warrant when the Summons is disobeyed.
Canada,
Province of
County of
To all or any of the constables and other peace oflBcers in the said county
of
Whereas on the day of , (instant or last past)
A. B., of , was charged before {me or us), the undersigned {or
name the justice or justices, or as the case may be), (o) justice of the
peace in and for the said county of , for that {etc., as in the
summons) ; and whereas I (or he the said justice of the peace, or we or they
the said justices of the peace) did then issue {my, our, his or their) sum-
mons to the said A. B,, commanding him, in His Majesty's name, to be and
appear before (me) on , at o'clock in the {fore)
noon, at , or before such other justice or justices of the peace
as should then be there, to answer to the said charge and to be further dealt
with according to law ; and whereas the said A. B. has neglected to be or
appear at the time and place appointed in and by the said summons, although
it has now been proved to (me) upon oath that the said summons was duly
served upon the said A. B. : These are therefore to command you in His
Majesty's name, forthwith to apprehend the said A. B., and to bring him
before (me) or some other justice of the peace in and for the said county
of , to answer the said charge, and to be further dealt with
according to law.
Given under {my) hand and seal, this day of ,
in the year , at , in the county aforesaid.
J. S., [SEAL,]
J. p., {name of county).
Form 8.
(Section 662.)
Endorsement in Backing a Warrant.
Canada,
Province of ,
County of
Whereas proof upon oath has this day been made before me ,
a justice of the peace in and for the said county of , that the
name of J. S. to the within warrant subscribed, is of the handwriting of
the justice of the peace within mentioned ; I do therefore hereby authorize
W. T. who brings to me this warrant and all other persons, to whom this
warrant was originally directed, or by whom it may be lawfully executed,
and also all peace officers of the said county of , to execute the
same within the said last mentioned county.
Given under my hand, this day of , in the year ,
at , in the county aforesaid.
J. L.,
J. P., {name of county).
C.C.P.— 36
563 WAEEANT FOR ANOTHER COUNTY — RECEIPT.
FOBK 9.
(Section 665.)
Warrant to convey before a Justice of another County.
Canada,
Province of ,
County of
To all or any of the constables and other peace officers in the said county
of
Whereas information upon oath was this day made before the under-
signed that A. B., of , on the day of , in the
year , at , in the county {state the charge).
And whereas I have taken the deposition of X. Y. as to the said offence.
And whereas the charge is of an offence committed in the county of
This is to command you to convey the said {name of accused), of
, before some justice of the last^mentioned county, near the
above place, and to deliver to him this warrant and the said deposition.
Dated at , in the said county of , this
day of , in the year
J. S.,
J. P., {name of county).
To of
FOBK 10.
(Section 666.)
Receipt to he given to the Constable by the Justice for the County in which
the Offence was committed.
\
Canada,
Province of
County of . j
I, J. L., a justice of the peace in and for the county of ,
hereby certify that W. T., peace officer of the county ol has, on
this day of , in the year , by virtue
of and in obedience to a warrant of J. S., Esquire, a justice of the peace
in and for the county of , produced before me one A. B., charged
before the said J. S. with having {etc., stating shortly the offence) and
delivered him into the custody of , by my direction to answer
to the said charge, and further to be dealt with according to law, and has
also delivered unto me the said warrant, together with the information (♦/
any) in that behalf, and the deposition (») of C. D. {and of )
in the said warrant mentioned, and that he has also proved to me, upon
oath, the handwriting of the said J. S., subscribed to the same.
Dated the day and year first above mentioned, at , in the said
county of
J. L.,
J. P., {name of county).
SUBPCENA FOE WITNESS — WARRANT FOR WITNESS. 563
(Section 671.)
FOBM 11.
Summons to a Witness.
Canada,
Province of
County of
.J
To E. F., of
, (lahourer) :
Whereas information has been laid before the undersigned ,
a justice of the peace in and for the said county of , that A.
B., (etc., as in the summons or warrant against the accused), and it has
been made to appear to me that you are likely to give material evidence for
(the prosecution or for the accused) ; These are therefore to require you
to be and to appear before me, on next, at o'clock in
the (fore) noon, at , or before such other justice or justices of
the peace of the said county of , as shall then be there, to
testify what you know concerning the said charge so made against the said
A. B. as aforesaid. Herein fail not.
Given under my hand and seal, this day of , in
the year , at , in the county aforesaid.
J. S., [seal.]
J. P., (name of county).
FOEM 12.
(Section 673.)
Warrant when a Witness has not obej/ed the Summons.
Canada,
Province of ,
County of
To all or any of the constables and other peace officers in the said county
of
Whereas information having been laid before , a justice of
the peace, in and for the said county of , that A. B. (etc., as
in the summons) ; and it having been made to appear to (me) upon oath
that E. F., of , (lahourer), was likely to give material evi-
dence for (the prosecution), (I) duly issued (my) summons to the said B.
F., requiring him to be and appear before (me) on , at ,
or before such other justice or justices of the peace for the said county, as
should then be there, to testify what he knows respecting the said charge
so made against the said A. B., as aforesaid ; and whereas proof has this
day been made upon oath before (me) of such summons having been duly
served upon the said E. F. ; and whereas the said E. F. has neglected to
appear at the time and place appointed by the said summons, and no just
excuse has been offered for such neglect: These are therefore to command
you to bring and have the said E. F. before ime) on at
o'clock in the (fore) noon, at , or before such other justice or
justices for the said county, as shall then be there, to testify what he
knows concerning the said charge so made against the said A. B. as
aforesaid.
Given under (my) hand and seal, this day of ,
in the year , at , in the county aforesaid.
J. S.. fSEAL.]
J. P., (name of county).
564 CONVICTION FOR CONTEMPT — WARRANT FOR WITNESS.
FOBM 13.
Conviction for Contempt.
(Sections 674 and 842.)
Canada, |
Province of , >
County of . J
Be it remembered that on the day of , in the
year , in the county of , E. F. is convicted before
me, for that he the said E. F. did not attend before me to give evidence on
the trial of a certain charge against one A. B. of theft (or as the case may
be), although duly subpoenaed {or bound by recognizance to appear and
give evidence in that behalf, as the case may be) but made default therein,
and has not shewn before me any suflScient excuse for such default, and I
adjudge the said E. F., for said offence, to be imprisoned in the common
jaU of the county of , at , for the space of ,
there to be kept with {or without) hard labour {as may be authorized and
determined, and in case a fine is also intended to be imposed, then proceed)
and I also adjudge that the said E. F. do forthwith pay to and for the use
of His Majesty a fine of dollars, and in default of payment, that
said fine, with the cost of collection, be levied by distress and sale of goods
and chattels of the said E. F. {or in case a fine alone is imposed, then
the clause of imprisonment is to be omitted).
Given under my hand at , in the said county of ,
the day and year first above mentioned,
O. K.,
Judge.
FOBK 14.
(Section 675.)
Warrant for a Witness in the First Instance.
Canada, ^
Province of , r
County of . )
To all or any of the constables and other peace officers in the said county
of
Whereas information has been laid before the undersigned ,>
a justice of the peace, in and for the said county of , that {etc.,
as in the summons) ; and it having been made to appear to (me) upon oath,,
that E. F. of {labourer), is likely to give material evidence for
the prosecution, and that it is probable that the said E. F. will not attend
to give evidence unless compelled to do so : These are therefore to command
you to bring and have the said E. F. before (me) on , at
o'clock in the {fore) noon, at , or before such other justice or
justice of the peace for the same county, as shall then be there, to testify
what he knows concerning the said charge so made against the said A. B.
as aforesaid.
Given under {my) hand and seal, this day oP ,
in the year , at , in the county aforesaid.
J. S., [SEAL.]
J. P., {name of county).
(Section G77.)
Canada,
Province of
County of
WARRANTS FOR DEFAULTING WITNESSES. 565
FOBM 15.
•.}
Warrant when a Witness has not obeyed the Sulpcena.
To all or any of the constables and other peace officers in the said county
of
Whereas information having been laid before , a justice of
the peace, in and for the said county, that A. B. {etc., as in the summons) ;
and there being reason to believe that E. F., of , in the pro-
vince of , (labourer), was likely to give material evidence for
(the prosecution), a writ of subpcena was issued by order of ,
Judge of (name of Court), to the said E. F., requiring him to be and
appear before (me) on , at , or before such other
justice or justices of the peace for the same county, as should then be
there, to testify what he knows respecting the said charge so made against
the said A. B., as aforesaid ; and whereas proof has this day been made
upon oath before (me) of such writ of subpoena having been duly served
upon the said E. F. ; and whereas the said E. F. has neglected to appear at
the time and place appointed by the said writ of subpoena, and no just
excuse has been offered for such neglect: These are therefore to command
you to bring and have the said E. F. before (me) on , at
o'clock in the (fore) noon, at , or before such other justice or
justices for the said county as shall then be there, to testify what he
knows concerning the said charge so made against the said A. B. as afore-
said.
Given under (my) hand and seal, this day of ,
in the year , at , in the county aforesaid.
J. S., TSEAL.]
J. p., (name of county).
FOKM 16.
(Section 678.)
Warrant of Commitment of a Witness for Refusing to be Sworn or to Give
Evidence.
Canada, "j
Province of , j-
County of . }
To all or any of the constables and other peace oflScers in the county of
, and to the keeper of the common gaol at ,
in the said county of
Whereas A. B. was lately charged before , a justice of the
peace in and for the said county of , for that (etc., as in the
summons) ; and it having been made to appear to (me) upon oath that
E. F., of , was likely to give material evidence for the prosecu-
tion, (/) duly issued (my) summons to the said E. F., requiring him to
be and appear before me on , at , or before such
other justice or justices of the peace for the said county as should then
be there, to testify what he knows concerning the said charge so made
against the said A. B. as aforesaid ; and the said E. F. now appearing
before (me) (or being brought before (me) by virtue of a warrant in that
behalf), to testify as aforesaid, and being required to make oath or affirma-
tion as a witness in that behalf, now refuses so to do (or being duly sworn
as a witness now refuses to answer certain questions concerning the pre-
mises which are now here piit to him. and more particularly the following
) without offering any just excuse for such refusal : These
566 WAEBANT REMANDING PEISONEB.
are therefore to command you, the said constables or peace officers, or any
one of you, to take the said E. F. and him safely to convey to the commoii
gaol at , in the county aforesaid, and there to deliver him to the
keeper thereof, together with this precept: 'And I do hereby command you,
the said keeper of the said common gaol, to receive the said E. F. into your
custody in the said common gaol, and him there safely keep for the space
of days, for the said contempt, unless in the meantime he con-
sents to be examined, and to answer concerning the premises ; and for your
so doing, this shall be your sufficient warrant.
Given under (my) hand and seal, this day of ,
in the year , at , in the county aforesaid.
J. S., [SEAL.]
J. p., (name of county).
FOBM 17.
(Section 679.)
Warrant Remanding a Prisoner.
Canada, |
Province of , r
County of . )
To all or any of the constables and other peace officers in the said county
of , and to the keeper of the common gaol at
in the said county.
Whereas A. B. was this day charged before the undersigned ,
a justice of the peace in and for the said county of , for that
{etc., as in the warrant to apprehend), and it appears to (me) to be neces-
sary to remand the said A. B. : These are therrfore to command you, the
said constables and peace officers, or any of you, in His Majesty's name,
forthwith to convey the said A. B. to the common gaol at , in
the said county, and there to deliver him to the keeper thereof, together
with this precept: And I hereby command you the said keeper to receive
the said A. B. into your custody in the said common gaol, and there safely
keep him until the day of (instant), when I hereby
command you to have him at , at o'clock in the
(fore) noon of the same day before (me) or before such other justice or
justices of the peace for the said county as shall then be there, to answer
further to the said charge, and to be further dealt with according to law,
unless you shall be otherwise ordered in the meantime.
Given under (my) hand and seal, this day of ,
in the year , at , in the county aforesaid.
J. S., [SEAL.]
J. P., (name of county).
FOBM 18.
(Section 681.)
Recognizance of Bail instead of Remand on an Adjournment of Examination.
Canada, ]
Province of , r
County of .1 ,
Be it remembered that on the day of , in the
year , A. B., of , (labourer), L. M., of ,
(grocer), and N. O., of , (butcher), personally came before me,
, a justice of the peace for the said county, and severally ac-
knowledged themselves to owe to our Sovereign Lord the King, his heirs
and successors, the several sums following, that is to say: The said A. B.
the sum of , and the said L. M., and N. O., the sum
BAIL ON REMAND — DEPOSITION OF WITNESS. 567
each, of good and lawful current money of Canada, to be made and levied
of their several goods and chattels, lands and tenements respectively, to the
use of our Lord the King, his heirs and successors, if he, the said A. B.,
fails in the condition endorsed (or hereunder written).
Taken and acknowledged the- day and year first above mentioned, at
before me.
J. S., [SEIAL.]
J. P., (name of county).
Condition.
The condition of the within [or above written recognizance) is such
that whereas the within bounden A. B. was this day (or on last
past) charged before me for that (etc., as in the warrant) ; and whereas the
examination of the witnesses for the prosecution in this behalf is adjourned
until the day of (instant) : If therefore, the said
A. B. appears before me on the said day of (instant),
at o'clock in the (fore) noon, or before such other justice or
justices of the peace for the said county as shall then be there, to answer
(further) to the said charge, and to be further dealt with according to law,
the said recognizance to be void, otherwise to stand in full force and virtue.
FOBM 19.
(Section 682.)
Deposition of a Witness.
0
Canada,
Province of
County of
The deposition of X. T., of , taken before the undersigned,
a justice of the peace for the said county of , this
day of , in the year , at (or after notice
to C. D. who stands committed for ) in the presence and hear-
ing of C. I>., who stands charged that (state the charge). The said depon-
ent saith on his (oath or affirmation) as follows. (Insert deposition as
nearly as possible in words of witness).
(If depositions of several witnesses are taken at the same time, they
may be taken and signed as follows) :
The depositions of X. of , Y. of , Z. of ,
etc., taken in the presence and hearing of C. D., who stands charged that
The deponent X. (on his oath or affirmation) says as follows:
The deponent Y. (on his oath or affirmation) says as follows:
The deponent Z. (on his oath, etc., etc.)
(The signature of the justice may be appended as follows) :
The depositions of X., Y., Z., etc., written on the several sheets of
paper, to the last of which my signature is annexed, were taken in the
presence and hearing of O. D., and signed by the said X., Y., Z,, etc.,
respectively in his presence. In witness whereof I have in the presence of
the said C. D. signed my name.
J. S.,
J. P., (name of county).
Form 20.
(Section 684.)
Statement of the Accused.
Canada,
Province of ,
County of
A. B. stands charged before the undersigned , a justice of
the peace in and for the county aforesaid, this day of ,
in the year , for that the said A. B., on , at
568 STATEMENT OP ACCUSED — RECOGNIZANCE COMMITMENT.
(etc., as in the captions of the depositions) ; and the said charge being read
to the said A. B., and the witnesses for the prosecution, O. D. and E. F,,
being severally examined in his presence, the said A. B. is now addressed
by me as follows:
* Having heard the evidence, do you wish to say anything in answer
to the charge? You are not obliged to say anything unless you desire to
do so ; but whatever you say wUl be taken down in writing, and may be
given in evidence against you at your trial. You must clearly understand
that you have nothing to hope from any promise of favour, and nothing
to fear from any threat which may have been held out to induce you to
make any admission or confession of guilt, but whatever you now say may
be given in evidence against you upon your trial, notwithstanding such pro-
mise or threat' Whereupon the said A. B. says as follows : {Here state
whatei'er the prisoner says and in his very words, as nearly as possible.
Oet him to sign it if he will).
A. B.
Taken before me, at , the day and year first above men-
tioned.
J. S., [SEAL.]
J. P., (name of county).
FoKM 23.
(Section 688.)
Form of Re(t>9nizance where the Prosecutor requires the Justice to hind
him over to prosecute after the charge is dismissed.
Canada,
Province of ,
County of
Whereas C. D. was charged before me upon the information of E. F.,
that C. D. (state the charge), and upon the hearing of the said charge I
discharged the said C. D., and the said E. F. desires to prefer an indict-
ment against the said C. D. respecting the said charge, and has required me
to bind him over to prefer such an indictment at (here describe the next
practicable sitting of the Court by which the person discharged would he
tried if committed).
The undersigned E. F. hereby binds himself to perform the following
obligation, that is to say, that he will prefer and prosecute an indictment
respecting the said charge against the said C.,D. at (as above). And the
said E. F. acknowledges himself bound to forfeit to the Crown the sum
of $ in case he fails to perform the said obligation.
E. F.
Taken before me.
J. S.,
J. P., (name of county).
FOBM 22.
(Section 690.)
Warrant of Commitment.
Canada, \
County of . I
Province of , j
To all or any of the constables and other peace oflBcers of , and
to the keeper of the (common gaol) at , in the said
county of
Whereas A. B. was this day charged before me, J. S., one of His
Majesty's justices of the peace in and for the said county of ,
on the oath of C D. of , (farmer), and others, for that (etc.,
RECOGNIZANCES TO PROSECUTE AND GIVE EVIDENCE, 569
stating shortly the offence) : These are therefore to command you the said
constable to take the said A. B., and him safely to convey to the {common
gaol) at aforesaid, and there to deliver him to the keeper thereof,
together with this precept? And I do hereby command you the said keeper
of the said {common gcMl) to receive the said A. B. into your custody in
the said {common gaol), and there safely keep him /until he shall be thence
delivered by due course of law.
Given under my hand and se»l this day of , in
the year , at , in the county aforesaid.
J. S., [SEAL.]
J. P., {name of county).
FOBM 23.
(Section 692.)
Recognizance to Prosecute :
Canada, "j '
Province of , v
County of . j
Be it remembered that on the day of , in the
year , C. D., of , in the of ,
in the said county of , {farmer), personally came before me
, a' justice of the peace in and for the said county of ,
and acknowledged himself to owe to our Sovereign Lord the King, his heirs
and successors, the sum of , of good and .lawful current money
of Canada, to be made and levied of his goods and chattels, lands and tene-
ments, ; to the use of our said Sovereign Lord the King, his heirs and suc-
cessors, if the said C. D. fails in the condition endorsed {or hereunder
written). ,
Taken and acknowledged the day and year first above mentioned, at
, before me. '
J. S.,
J. P., {name of county).
I Condition to Prosecute.
The condition of the within (or above) written recognizance is such
that whereas one A. B. was this day charged before me, J. S., a justice of
the peace within mentioned, for that {etc., as '.in the caption of the deposi-
tions) ; if, therefore, he the said C. D. appears at the Court by which the
said A.B. is or shall be tried* and there duly prosecutes such charge then
the said recognizance to be void, otherwise to stand in full force and virtue.
FoBM 24.
(Section 602.)
Recognizance to Prosecute and give Evidence.
{Same as last form, to the asterisk,* and then thus) : And there duly
prosecutes such charge against the said A. B. for the; offence aforesaid, and
gives evidence thereon, as well to the jurors who shall then inquire into the
said offence, as also to them who sliall pass upon the trial of the said A. B.,
then the said recognizance to be void, or else to stand in full force and
virtue.
570 COMMITMENT AND DISCHARGE OF WITNESS.
FOBM 25.
(Section 692.)
Recognizance to give Evidence.
(Same at form 2S to the asterisk* and then thus) : — And there gives
such evidence as he knows upon the charge to be then and there preferred
against the said A. B. for the offence aforesaid, then the said recognizance
to be void, otherwise to remain in full force and virtue.
FoBM 26.
(Section 694.)
Commitment of a Witness for Refusing to Enter into the Recognizance.
Canada, \
Province of ,1
Ck)unty of . )
To all or any of the peace officers in the said county of , and to
the keeper of the common gaol of the said county of , at ,
in the said county of
Whereas A. B. was lately charged before the undersigned [name of the
justice of the peace), a justice of the peace in and for the said county of
, for that (etc., as in the summons to the witness), and it having
been made to appear to (me) upon oath that E. F., of , was likely
to give materifd evidence for the prosecution, (/) duly issued (my) sum-
mons tQ the said E. F., requiring him to be and appear before (me) on
, at or before such other justice or justices of the peace
as should then be there, to testify what he knows concerning the said
charge so made against the said A. B. as aforesaid ; and the said E. F.
now appearing before (me) (or being brought before (me) by virtue of a
warrant in that behalf to testify as aforesaid), has been now examined
before (me) touching the premises, but being by (me) required to enter
into a recognizance conditioned to give evidence against the said A. B.,
now refuses so to do: These are therefore to command you the said peace
officers, or any one of you, to take the said E. P. and him safely convey to
the common gaol at , in the county aforesaid, and there deliver
him to the said keeper thereof, together with this precept : And I do hereby
command you, the said keeper of the said common gaol, to receive the said
E. F. into your custody in the said common gaol, there to imprison and
safely keep him until after the trial of the said A. B. for the offence afore-
said, unless in the meantime the said E. F. duly enters into such recogni-
zance as aforesaid, in the sum of before some one justice of the
peace for the said county, conditioned in the usual form to appear at the
Court by which the said A. B. is or shall be tried, and there to give evidence
upon the charge which shall then and there be preferred against the said
A. B. for the offence aforesaid.
Given under my hand and seal, this day of , in
the year , at , in the county aforesaid.
J. S., [SEAL.]
J. p., (name of county).
FOBM 27.
(Section 694.)
Order Discharging Witness, when Accused Discharged.
Canada, \
Province of , I
County of . j
To the keeper of the common gaol at , in the county of ,
aforesaid.
Whereas by (my) order dated the day of (instant) recit-
ing that A. B. was lately before then charged before (me) for a certain
RECOGNIZANCE OF BAIL. 571
offence therein mentioned, and that E. F, having appeared before (me)
and being examined as a witness for the prosecution on that behalf, refused
to enter into recognizance to give evidence against the said A. B., and I
therefore thereby committed the said E. F. to your custody, and required
yoTi safely to keep him until after the trial of the said A. B. for the offence
aforesaid, unless in the meantime he should enter into such recognizance as
aforesaid ; and whereas for want of suflScient evidence against the said
A. B., the said A. B. has not been committed or holden to bail for the said
offence, but on the contrary thereof has been since discharged, and it is
therefore not necessary that the said E. F. should be detained longer* in
your custody : These are therefore to order and direct you the said keeper
to discharge the said E. F. out of your custody, as to the said commitment,
and suffer him to go at large.
Given under (my) hand and seal, this day of
in the year , at , in the county aforesaid.
J. S., [SEAI..]
J. p., {name of county).
FoBK 28.
(Section 696.)
Recognizance of Bail.
Canada, )
Province of , l
County of . j
Be it remembered that on the day of , in the year
, A. B. of , (labourer), L. M. of (grocer), and
N. O. of , (butcher), personally came before (««) the undersigned,
(two) justices of the peace for the county of , and severally ack-
nowledged themselves to owe to our Sovereign Lord the King, his heirs and
successors, the several sums following, that is to say : the said A. B., the
sum of , and the said L. M. and N. O. the sum of , each,
of good and lawful current money of Canada, to be made and levied of
their several goods and chattels, lands and tenements respectively, to the
use of our said Sovereign Lord the King, his heirs and successors, if he,
the said A. B., fails in the condition endorsed (or hereunder written).
Taken and acknowledged the day and year first above mentioned, at
, before us.
J. S.,
J. N..
J. P., (name of county).
The condition of the within (or above) written recognizance is such
that whereas the said A. B. was this day charged before (us), the justices
within mentioned for that (etc., as in the warrant) ; if, therefore, the said
A. B. appears at the next Superior Court of Criminal Jurisdiction (or
Court of General or Quarter Sessions of the Peace) to be holden in and for
the county of , and there surrenders himself into the custody of
the keeper of the common gaol (or lock-up house) there, and pleads to
such indictment as may be found against him by the grand jury, for and in
respect to the charge aforesaid, and takes his trial upon the same, and does
not depart the said Court without leave, then the said recognizance to be
void, otherwise to stand in full force and virtue.
572 WARRANT OF DISCHARGE WHEN BAIL GIVEN.
FOBM 29.
(Section 698.)
Warrant of Deliverance on BaU being given for a Prisoner already
Committed.
Canada, ^
Province of ,
County of . J
To the keeper of the common gaol of the county of , at ,
in the said county.
Whereas A. B. late of , (labourer), has before («s) (two)
justices of the peace in and for the said county of , entered into his
own recognizance, and found sufficient sureties for his appearance at the
next Superior Court of Criminal Jurisdiction (or Court of General or
Quarter Sessions of the Peace) , to be holden in and for the county of ,
to answer our Sovereign Lord the King, for that (etc., as in the commit-
ment), for which he was taken and committed to your said common gaol.
These are therefore to command you, in His Majesty's name, that if the
said A. B. remains in your custody in the said common gaol for the said
cause, and for no other, you shall forthwith suffer him to go at large.
Given under our hands and seals, this day of , in the
year , at , in the county aforesaid.
J. S., [SEAL.]
J. N., [seal.]
J. P., {name of county).
FOEM 30.
(Section 704.)
Gaoler's Receipt to the Constable for the Prisoner.
I hereby certify that I have received from W. T., constable, of the
county of , the body of A. B., together with a warrant under the
hand and seal of J. S., Esquire, justice of the peace for the said county of
, and that the said A, B. was sober, {or as the case may be), at
the time he was delivered into my custody.
P. K.,
Keeper of the common gaol of the said county.
Form 31.
(Section 727.)
Conviction for a Penalty to be Levied by Distress, and in Default of
Sufficient Distress, by Imprisonment.
Canada,
Province of
County of
Be it remembered that on the day of , in the year
, at , in the said county, A. B. is convicted before the
undersigned, , a justice of the peace for the said county, for that
the said A. B. {etc., stating the offence, and the time and place when and
where committed) , and I adjudge the said A. B. for his said offence to
forfeit and pay the sum of $ {stating the penalty, and also the com-
pensation, if any), to be paid and applied according to law, and also to pay
to the said C. D. the sum of , for his costs in this behalf; and if
the said several sums are not paid forthwith, {or on or before the
CONVICTION FOR A PENALTY — IMPRISONMENT. 573
of next), * I order that the same be levied by distress and sale of
the goods and chattels of the said A. B., and in default of sufficient distress.
* I adjudge the said A. B. to be imprisoned in the common gaol of the said
county, at , in the said county of , (there to be kept
at hard labour, if the Act or law authorizes this, and it is so adjudged) for
the term of , unless the said several sums and all costs and
charges of the said distress and of the commitment and of the conveying
of the aid A. B. to the said gaol are sooner paid.
Given under my hand and seal, the day and year first above mentioned,
at , in the county aforesaid.
J. S., [SEAL.]
J. P., (name of county).
* Or when the issuing of a distress warrant would he ruinous to the
defendant and hii^ family, or it appears he has no goods whereon to levy a
distress, then instead of the words between the asterisks say, ' inasmuch
as it is now made to appear to me that the issuing of a warrant of distress
in this behalf would be ruinous to the said A. B. and his family,' (or,
' the said A. B. has no goods or chattels whereon to levy the said sums
by distress ' ) .
FOBH 32.
(Section 727.)
Conviction for a Penalty, and in Default of Payment, Imprisonment.
Canada, ^
Province of , j-
County of . )
Be it remembered that on the day of , in the
year , af , in the said county, A. B. is convicted
before the undersigned, , a justice of the peace for the said
county, for that he the said A. B. (etc., stating the offence, and the time
and place when and where it was committed), and I adjudge the said A. B.
for his said offence to forfeit and pay the sum of (stating the
penalty and compensation, if any) to be paid and applied according to law ;
and also to pay to the said C. D. the sum of for his costs in
this behalf; and if the said several sums are not paid forthwith (or, on or
before next), I adjudge the said A. B. to be imprisoned in the
common gaol of the said county, at , in the said county
of (and there to be kept at hard labour, if the Act or laic
authorizes this, and it is so adjudged) for the term of , unless
the said sums and the costs and charges ofl the commitment and of the
conveying of the said A. B. to the said common gaol are sooner paid.
Given under my hand and seal, the day and year first above mentioned
at , in the county aforesaid.
J. S., [SEAL.]
J. P., (name of oounty).
FOBM 33.
(Section 727.)
Conviction when the Punishment is by Imprisonment, etc.
Canada,
Province of
County of
Be it remembered that on the day of , in the
year , at , in the said county, A. B. is convicted
before the undersigned, , a justice of the peace in and for the
574 ORDER FOR PAYMENT TO BE LEVIED BY DISTRESS.
said county, for that he the said A. B. (etc., stating the offence, and the
time and place when and where it was committed) ; and I adjudge the said
A. B. for his said offence to be imprisoned in the common gaol of the said
county, at , in the county of , (and there to be kept
at hard labour, if the Act or law authorizes this, and it is so adjudged) for
the term of ; and I also adjudge the said A. B. to pay to the
said C. D. the sum of , for his costs in this behalf, and i£ the
said sum for costs is not paid forthwith (or on or before next),
then * I order that the said sum be levied by distress and sale of the goods
and chattels of the said A. B. ; and in default of sufficient distress in that
behalf,* I adjudge the said A. B. to be imprisoned in the said common gaol
(and kept there at hard labour, if the Act or law authorizes this, and it is
so adjudged) for the term of , to commence at and from the
expiration of the term of his imprisonment aforesaid, unless the said sum
for costs and the costs and charges of the commitment and of the conveying
of the said A. B. to gaol are sooner paid.
Given under my hand and seal, the day and year first above mentioned
at , in the county aforesaid.
J. S., [SEAL.]
J. P., (name of county).
* Or when the issuing of a distress warrant would he ruinous to the
defendant and hts family, or it appears that he has no goods whereon to levy
a distress, then, instead of the words between the asterisks * * say, * inas-
much as it is now made to appear to me that the issuing of a warrant of
distress in this behalf would be ruinous to the said A. B. and his family,'
(or 'that the said A. B. has no goods or chattels whereon to levy the said
sum for costs by distress ' ) .
FOBM 34.
(Section 727.)
Order for Payment of Money to he Levied hy Distress, and in Default of
Distress, Imprisonment.
Canada, ]
Province of , f
County of . ;
Be it remembered that on , a complaint was made before
the undersigned, , a justice of the peace in and for the said
county of , for that (stating the facts entitling the complainant
to the order, with the time and place when and where they occurred), and
now at this day, to wit, on , at , the parties afore-
said appear before me the said justice (or the said C. D. appears before me
the said justice, but the said A. B., although duly called, does not appear
by himself, his counsel or attorney, and it is now satisfactorily proved to me
on oath that the said A. B. was duly served with, the summons in this
behalf, which required him to be and appear here on this day before me or
such justice or justices of the peace for the county, as should now be here,
to answer the said complaint, and to be further dealt with according to law) ;
and now having heard the matter of the said complaint, I do adjudge the said
A. B. to pay to the said C. D. the sum of forthwith (or on or
before next, or as the Act or law requires), and also to pay to
the said C. D. the sum of for his costs in this behalf; and if the
said several sums are not paid forthwith (or on or before next),
then,* I hereby order that the same be levied by distress and sale of the
goods and chattels of the said A. B. and in default of sufficient distress in
that behalf * I adjudge the said A. B. to be imprisoned in the common gaol
of the said county, at , in the said county of , (and
there kept at hard labour, if the Act or lato authorizes this, and it is so
adjudged) for the term of , unless the said several sums and all
costs and charges of the said distress and of the commitment and of the
conveying of the said A. B. to the said common gaol are sooner paid.
OEDEK FOR PAYMENT OF MONEY. 575
Given under my hand and seal, this day of ,
in the year , at , in the county aforesaid.
J. S., [SEAL.]
J. P., {name of county).
* Or when the issuing of a distress warrant would ie ruinous to the
defendant and his family, or it appears that he has no goods whereon to levy
a distress, then, instead of the words between the asterisks * * say, ' inas-
much as it is now made to appear to me that the issuing of a warrant of
distress in this behalf would be ruinous to the said A. B. and his family,*
(or ' that the said A. B. has no goods or chattels whereon to levy the said
sums by distress').
FOKM 35.
(Section 727.)
Order for Payment of Money, and in Default of Payment, Imprisonment.
Canada,
Province of
County of
Be it remembered that on , complaint was made before the
undersigned, , « justice of the peace in and for the said county
of , for that (stating the facts entitling the complainant to the
order, with the-time and place when and where they occurred), and now on
this day, to wit, on , at _ , the parties aforesaid appear
before me the said justice (or the said C. D. appears before me the said
justice, but the said A. B., although duly called, does not appear by himself,
his counsel or attorney, and it is now satisfactorily proved to me upon oath
that the said A. B. was duly served with the summons in this behalf, which
required him to be and appear here this day before me, or such justice or
justices of the peace for the said county, as should now be here, to answer to
the said complaint, and to be further dealt with according to law), and now
having heard the matter of the said complaint, I do adjudge the said A. B.
to pay to the said C. D. the sum of forthwith (or on or before
next, or as the Act or law requires), and also to pay to the said
C. D. the sum of for his costs in this behalf; and if the said
several sums are not paid fiorthwith (or on or before next), then
I adjudge the said A. B. to be imprisoned in the common gaol of the said
county at , in the said county of , (there to be kept
at hard labour, if the Act or law authorizes this, and it is so adjudged) for
the term of , unless the said several sums and the costs and
charges of the commitment and of the conveying of the said A. B. to the
said common gaol are sooner paid.
Given under my hand and seal, this day of , in
the year , at , in the county aforesaid.
J. S., [SEAL.]
J. P., (name of county).
FOBM 36.
(Section 727.)
Order for any other Matter where the Disobeying of it is Punishable with
Imprisonment.
Canada, 1
Province of , I
County of . )
Be it remembered that on , complaint was made before the
undersigned, , a justice of the peace in and for the said county
of , for that (stating the facts entitling the complainant to the
order, with the time and place where and when they occurred) ; and now on
this day, to wit, on .at . the parties aforesaid appear
before me the said justice (or the said C. D. appears before me the said
576 ORDER DISMISSING INFORMATION.
justice, but the said A. B., although duly called, does not appear by himself,
his counsel or attorney, and it is now satisfactorily proved to me, upon oath,
that the said A. B. was duly served with the summons in this behalf, which
required him to be and appear here this day before me, or such justice or
justices of the peace for the said county, as should now be here, to answer to
the said complaint and to be further dealt with according to law) ; and now
having heard the matter of the said complaint, I do adjudge the said A. B.
to (here state the matter required to ie done), and if, upon a copy of the
minute of this order being served upon the said A. B., either personally or by
leaving the same for him at his last or most usual place of abode, he neglects
or refuses to obey the same, in that case I adjudge the said A. B., for such
his disobedience, to be imprisoned in the common gaol of the said county,
at , in the said county of , (there to be kept at hard
labour, if the Act or law authorizes this, and it is so adjudged) for the term
of , unless the said order is sooner obeyed, and I do also adjudge the
said A. B. to pay to the said C D. the sum of for his costs in this
behalf, and if the said sum for costs is not paid forthwith (or on or before
next), I order the same to be levied by distress and sale of the
goods and chattels of the said A. B., and in default of sufficient distress in
that behalf I adjudge the said A. B. to be imprisoned in the said common
gaol (there to be kept at hard labour, if the Act or late authorizes this, and
it is so adjudged) for the space of , to commence at and from the
termination of his imprisonment aforesaid, unless the said sum for costs is
sooner paid.
Given under my hand and seal, this day of , in
the year , at , in the county aforesaid.
J. S., [SEAL.]
J. P., {name of county).
:\
FoEM 37.
(Section 730.)
Form of Order of Dismissal of an Information or Complaint.
Canada,
Province of
County of
Be it remembered that on , information was laid (or com-
plaint was made) before the undersigned, , a justice of the peace
in and for the said county of , for that (etc., as in the summons
of the defendant) and now at this day, to wit, on , at ,
(if at any adjournment insert here : ' to which day the hearing of this case
was duly adjourned, of which the said C D. had due notice,') both the said
parties appear before me in order that I should hear and determine the said
information (or complaint) (or the said A. B. appears before me, but the
said C. D., although duly called, does not appear) ; [whereupon the matter of
the said information (or complaint) being by me duly considered, it mani-
festly appears to me that the said information (or complaint) is not proved,
and] (*/ the informant or complainant does not appear, these ivords may be
omitted), I do therefore dismiss the same, and do adjudge that the said C. D.
do pay to the said A. B. the sum of , for his costs incurred by
him in defence in his behalf ; ; and if the said sum for costs is not paid forth-
with (or on or before ), I order that the same be levied by
distress and sale of the goods and chattels of the said C. D., and in default of
sufficient distress in that behalf, I adjudge the said C. D. to be imprisoned
in the common gaol of the said county of , at , in
the said county of (and there kept at hard labour, if the Act or
law authorizes this, and it is so adjudged) for the term of , unless
the said sum for costs, and all costs and charges of the said distress and of
the commitment and of the conveying of the said C. D. to the said common
gaol are sooner paid.
Given under my hand and seal, this day of , in
the year , at , in the county aforesaid.
J. S., [SEAL.]
J. P., (name of county.)
CERTIFICATE OF DISMISSAL WARRANT OF DISTRESS. 577
Form 38.
(Section 730.)
Form of Certificate of Dismissal.
Canada, |
Province of ' f *
County of . )
I hereby certify that an information {or complaint) preferred by C. D.
against A. B. for that (etc., as in the summons) was this day considered by
me, a justice of the peace in and for the said county of , and was
by me dismissed (with costs).
Dated at , this day of , in the year
J. S.,
J. P., (name of county.)
FOBM 39.
(Section 741.)
Warrant of Distress upon a Conviction for a Penalty.
Canada,
Province of
County of
To all or any of the constables and other peace officers in the said county
of
Whereas A, B., late of , (labourer), was on this day (or
on last past) duly convicted before , a justice of the
peace, in and for the said county of , for that (stating the offence,
as in the conviction), and it was thereby adjudged that the said A. B. should
for such his offence, forfeit and pay (etc., as in the conviction), and should
also. pay to the said C. D. the sum of , for his costs in that
behalf ; and it was thereby ordered that if the said several sums were not
paid (forthwith) the same should be levied by distress and sale of the goods
and chattels of the said A. B., and it was thereby also adjudged that the said
A. B., in default of sufficient distress, should be imprisoned in the common
gaol of the said county at , in the said county of
(and there kept at hard labour if the conviction so adjudges) for the space
of , unless the said several sums and all costs and charges of the
said distress, and of the commitment and conveying of the said A. B. to the
said common gaol were sooner paid ; *And whereas the said A. B., being so
convicted as aforesaid, and being (now) required to pay the said sums of
and has not paid the same or any part thereof, but
therein has made default: These are, therefore, to command you in His
Majesty's name forthwith to make distress of the goods and chattels of the
said A. B. ; and if within days next after the making of such
distress, the said sums, together with the reasonable charges of taking and
keeping the distress, are not paid, then to sell the said goods and chattels so
by you distrained, and to pay the money arising from such sale unto me, the
convicting justice (or one of the convicting justices), that I may pay and
apply the same as by law directed, and may render the overplus, if any, on
demand, to the said A. B. ; and if no such distress is found, then to certify
the same unto me, that such further proceedings may be had thereon as to
law appertain.
Given under my hand and seal, this day of , in
the year , at , in the county aforesaid.
J. S., [SEAL.]
J. P., (name of county.)
c.c.p. — 37
578 WABBANT OF M8TBESS ON ORDEE FOB PAYMENT.
Form 40.
(Section 741.)
Warrant of Distress upon an Order for the Payment of Money.
Canada,
Province of ,
County of
To all or any of the constables and other peace oflBcers in the said county
of
Whereas on , last past, a complaint was made before ,
a justice of the peace in and for the said county, for that (etc., as in the
order), and afterwards, to wit, on , at , the said parties
appeared before (as in the order), and thereupon the matter of
the said complaint having been considered, the said A. B. was adjudged to
pay to the said C. D. the sum of , on or before then
next, and also to pay to the said C. D. the sum of , for his costs in
that behalf ; and it was ordered that if the said several sums were not paid
on or before the said then next, the same should be levied by
distress and sale of the goods and chattels of the said A. B. ; and it was
adjudged that in default of sufficient distress in that behalf, the said A. B.
should be imprisoned in the common gaol of the said county, at ,
in the said county of (and there kept at hard labour if the
order so directs) for the term of , unless the said several sums and
all costs and charges of the distress (and of the commitment and convey-
ing of the said A. B. to the said common gaol) were sooner paid; *And
Whereas the time in and by the said order appointed for the payment of
the said several sums of , and has elapsed, but the said
A. B. has not paid the same, or any part thereof, but therein has made
default : These are, therefore, to command you, in His Majesty's name,
forthwith to make distress of the goods and chattels of the said A. B. ; and
if within the space of days after the making of such distress, the
said last mentioned sums, together with the reasonable charges of taking
and keeping the said distress, are not paid, then to sell the said goods and
chattels so by you distrained, and to pay the money arising from such sale
unto me (or some other of the convicting justices, as the case ma^ 5e),
that I (or he) may pay or apply the same as by law directed, and may
render the overplus, if any, on demand to the said A. B. ; and if no such
distress can be found, then to certify the same unto me, to the end that
such proceedings may be had therein, as to law appertain.
Given under my hand and seal, this day of , in the
year , at , in the county aforesaid.
J. S.. [SEAI,.]
J. P., (name of county).
Form 41.
(Section 741.)
Warrant of Commitment upon a Conviction for a Penalty in the first
instance.
Canada,
Province of ,
County of
To all or any of the constables and other peace officers in the said county
of , and to the keeper of the common gaol of the said county
of ,* at , in the said county of
WARRANTS OF COMMITMENT. 579
Whereas A. B., late of , (labourer), was on this day con-
victed before the undersigned, , a justice of the peace in and
for the said county, for that (stating the offence, as in the conviction), and
it was thereby adjudged that the said A. B., for his offence, should forfeit
and pay the sum of (etc., as in the conviction), and should pay
to the said O. D. the sum of , for his costs in that behalf ; and
it was thereby further adjudged that if the said several sums were not paid
(forthwith) the said A. B. should be imprisoned in the common gaol of
the county, at , in the said county of (and there
kept at hard labour if the conviction so adjudges) for the term of
unless the said several sums and the costs and charges of the commitment
and of the conveying of the said A. B. to the said common gaol were sooner
paid ; and whereas the time in and by the said conviction appointed for
the payment of the said several sums has elapsed, but the said A. B, has
not paid the same, or any part thereof, but therein has made default:
These are, therefore, to command you, the said peace officers, or any one of
you, to take the said A. B., and him safely to convey to the common gaol
at aforesaid, and there to deliver him to the said keeper thereof,
together with this precept : And I do hereby command you, the said keeper
of the said common gaol, to receive the said A. B. into your custody in the
said common gaol, there to imprison him (and keep him at hard labour
if the conviction so adjudges) for the term of , unless the said
several sums and the costs and charges of the commitment and of the con-
veying of the said A. B. to the said common gaol are sooner paid unto you,
the said keeper ; and for your so doing, this shall be your sufficient warrant.
Given under my hand and seal, this day of , in the
year , at , in the county aforesaid.
J. S., [seal.]
J. P., (name of county.)
FOBM 42.
(Section 741.)
Warrant of Commitment on an Order in the first Instance.
Canada,
Province of ,
County of
To all or any of the constables and other peace officers in the said county
of , and to the keeper of the common gaol of the said county
of , at , in the said county of ,
Whereas, on last past, complaint was made before the
undersigned , a justice of the peace in and for the said county
of , for that (etc., as in the order), and afterwards, to wit, on
the day of , at A. B. and C. D. appeared
before me, the said justice (or as it is in the order), and thereupon having
considered the matter of the complaint, I adjudged the said A. B. to pay
the said C. D. the sum of , on or before the day
of then next, and also to pay to the said C. D. the sum of
for his costs in that behalf; and I also thereby adjudged that if the said
several sums were not paid on or before the day of then
next, the said A. B. should be imprisoned in the common gaol of the county
of , at , in the said county of (and there be
kept at hard labour if the order so directs » for the term of ,
unless the said several sums and the costs and charges of the commitment
and of the conveying of the said A. B. to the said common gaol, were sooner
paid : And whereas the time in and by the said order appointed for the
payment of the said several sums of money has elapsed, but the said A. B.
has not paid the same, or auy part thereof, but therein has made default :
These are, therefore, to command you, the said peace officers, or any of you,
to take the said A, B. and him safely to convey to the said common gaol,
at aforesaid, and there to deliver him to the keeper thereof,
together with this precept : And I do hereby command you, the said
keeper of the said common gaol, to receive the said A. B. into your custody
in the said common gaol, there to imprison him (and keep him at hard
580 COMMITMENT FOR WANT OF DISTEESS.
labour if^he order so directs) for the term of unless the said
several sums and the costs and charges of the commitment and of convey-
ing him to the said common gaol are sooner paid unto you the said keeper ;
and for your so doing this shall be your sufBcient warrant.
Given under my hand and seal, this day of , in the
year , at , in the county aforesaid.
J. S., [SEAL.]
J. P. (name of county).
Form 43.
(Section 741.)
Constable's Return to a Warrant of Distress.
I, W. T., constable, of , in the county of ,
hereby certify to J. S., Esquire, a justice of the peace in and for the
coun^ of , that by virtue of this warrant I have made diligent
search for the goods and chattels of the within mentioned A. B., and that I
can find no sufficient goods or chattels of the said A. B. whereon to levy the
sums within mentioned.
Witness my hand, this day of , one thousand nine
hundred and
Form 44.
(Section 741.)
Warrant for Commitment for Want of Distress.
Canada.
Province of ,
County of
To all or any of the constables and other peace officers in the county
of , and to the keeper of the common gaol of the said county
of , at , in the said county.
Whereas (etc., as in either of the foregoing distress tcarrants 39 or 40,
to the asterisk,* and then thus) : And whereas, afterwards on the
day of , in the year aforesaid, I, the said justice, issued a warrant
to all or any of the peace officers of the county of , commanding
them, or any of them, to levy the said sums of and by
distress and sale of the goods and chattels of the said A. B. : And whereas
it appears to me, as well by the return of the said warrant of distress by
the peace officer who had the execution of the same, as otherwise, that the
said peace officer has made diligent search for the goods and chattels of the
said A. B., but that no sufficient distress whereon to levy the sums above
mentioned could be found : These are, therefore, to command you, the
said peace officers, or any one of you, to take the said A. B., and him safely
to convey to the common gaol at aforesaid, and there deliver
him to the said keeper, together with this precept : And I do hereby com-
mand you, the said keeper of the said common gaol, to receive the said
A. B. into your custody, in the said common gaol, there to imprison him
(and keep him at hard labour if the order so directs) for the term of
, unless the said several sums, and all the costs and charges
of the said distress and of the commitment and of the conveying of the
said A. B. to the said common gaol are sooner paid unto you, the said
keeper ; and for so doing this shall be your sufficient warrant.
Given under my hand and seal, this day of , in the
year , at , in the county aforesaid.
J. S., [SEAL.]
J. P. (name of county).
DISTRESS FOR COSTS ON ORDER OF DISMISSAL. 581
FOEM 45.
(Section 742.)
Warrant of Distress for Costs upon an Order for Dismissal of an Informa-
tion or Complaint.
To all or any ofi the constables and other peace officers in the said counts-
of
Canada,
Province of ,
CJounty of .
Whereas on last past, information was laid {or complaint
was made) before , a justice of the peace in and for the said
■ county of , for that {etc., as in the order of dismissal) and after-
wards, to wit, on , at , both parties appearing before
(me) , in order that (/) should hear and determine the same, and
the several proofs adduced to (we) in that behalf, being by (me) duly heard
and considered, and it manifestly appearing to (me) that the said informa-
tion {or complaint) was not proved, (7) therefore dismissed the same and
adjudged that the said C. D. should pay to the said A. B. the sum of
, for his costs incurred by him in his defence in that behalf;
and (/) ordered that if the said sum for costs was not paid (forthwith),
the same should be levied on the goods and chattels of the said C. D., and
(7) adjudged that in default of sufficient distress in that behalf the said
C. D. should be imprisoned in the common gaol of the said county of ,
at , in the said county of
(and there kept at hard labour, if the order so directed) for the space of
unless the said sum for costs, and all costs and charges of the
said distress and of the commitment and of the conveying of the said A. B.
to the said common gaol, were sooner paid ; * And whereas the said C. D,
being now required to pay to the said A. B. the said sum for costs, has
not paid the same, or any part thereof, but therein has made default :
These are, therefore, to command you, in His Majesty's name, forthwith to
make distress of the goods and chattels of the said O. D. and if within the
term of days next after the making of such distress, the said
last mentioned sum, together with the reasonable charges of taking and
keeping the said distress, shall not be paid, then to sell the said goods and
chattels so by you distrained, and to pay the money arising from such sale
to (me) that (/) may pay and apply the same as by law directed, and may
render the overplus (if any) on demand to the said C. D., and if no dis-
tress can be 'found, then to certify the same unto {me) {or to any other
justice of the peace for the said county), that such proceedings may be had
therein as to law appertain.
Given under my hand and seal, this day of , in the
year , at , in the county aforesaid.
J. S., [seal.]
J. P. {name of county).
Form 46.
(Section 742.)
Warrant of Commitment for Want of Distress,
Canada,
Province of ,
County of
To all or any of the constables and other peace officers in th.? said county
of , and to the keeper of the common gaol of the said county
of , at , in the said county of
Whereas {etc., as in form J/S to the asterisk, * and then thus) : And
whereas afterwards, on the day of , and in the year afore-
said, I, the said justice, issued a warrant to all or any of the peace officers
of the said county, commanding them, or any of them, to levy the said sum
582 COMPLAINT BY PARTY THREATENED.
of , for costs, by distress and sale of the jjoods and chattels of
the said C. I). ; And whereas it appears to me, as well by the return to the
said warrant of distress of the peace officer charged with the execution of
the same, as otherwise, that the said peace officer has made diligent search
for the goods and chattels of the said G. D., but that no sufficient distress
whereon to levy the sum above mentioned could be found : These are, there-
fore, to command you, the said peace officers, or any one of you, to take the
said C. D., and him safely convey to the common gaol of the said county, at
aforesaid and there deliver him to the keeper thereof, together
with this precept : And I hereby command you, the said keeper of the said
common gaol, to receive the said O. D. into your custody in the said common
gaol, there to imprison him and keep him at hard labour (if the order so
directed): for the term of , unless the said sum. and all the costs
and charges of the said distress and of the commitment and of the convey-
ing of the said C. D. to the said common gaol are sooner paid unto you the
said keeper ; and for your so doing, this shall be your sufficient warrant.
Given under my hand and seal, this day of , in the
year , at , in the county aforesaid.
J. S., [SEAI..]
J. P. (name of cottnty).
FoBM 47.
(Section 743.)
Endorsement in BacTcing a Warrant of Distress.
Canada,
Province of ,
County of
Whereas proof upon oath has this day been made before me ,
a justice of the peace in and for the said county,' that the name of J. S. to
the within warrant subscribed is of the handwriting of the justice of the
peace within mentioned. I do therefore authorize W. T., who brings me
this warrant, and all other persons to whom this warrant was originally
directed, or by whom the same may be lawfully executed, and also all peace
officers in the said county of , to execute the same within the said
county.
Given under my hand, this day of , one thousand
nine hundred and
O. K..
J. P. (name of county).
FoBM 48.
(Section 748.)
Complaint hy the Party Threatened, for Sureties for the Peace.
Canada, ]
Province of , i-
County of . )
The information (or complaint of C. D.. of , in the
Baid county of , (labourer), (if preferred by an attorney or agent,
say — by D. E.. his duly authorized agent (or attorney), in this behalf),
taken upon oath, before me, the undersigned, a justice of the peace, in and
for the said county of , at , in the said county of ,
this day of , in the year , who says that A. B.,
of . in the said county did. on the day of (instant
or last past), threaten the said C. D. in the words or to the effect follow-
ing, that is to say: (set them out, with the circumstances under which they
were used) ; and that from the above and other threats used by the said
A. B. towards the said C. D., he, the said C. D., is afraid that the said A. B.
will do him some bodily injury, and therefore prays that the said A. B. may
be required to find sufficient sureties to keep the peace and be of good
behaviour towards him, the said O. D. ; and the said C. D. also says that
he does not make this complaint against nor require such sureties from the
said A. B. from any malice or ill-will, but merely for the preservation of
his person from injury.
EECOGNIZANCE TO KEEP THE PEACE. 583
FOEM 49.
(Sections 748 and 1058.)
Form of Recognizance to Keep the Peace.
Canada, ]
Province of , }■
County of . j
Be it remembered that on the day of , in the
year , A. B. of , {labourer), L. M. of , {grocer),
and N. O. of , {butcher), personally came before {us) the under-
signed, {two) justices of the peace for the county of . and
severally acknowledged themselves to owe to our Lord the King the several
sums following, that is to say : the said A. B. the sum oC , and
the said L. M. and N. O. the sum of , each, of good and lawful
money of Canada, to be made and levied of their goods and chattels, lands
and tenements respectively, to the use of our said Lord the King, his heirs
and successors, if he, the said A. B., fail in the condition endorsed {or here-
under written ) ,
Taken and acknowledged the day and year first above mentioned
at before us.
J. S.,
J. T.,
J. P. {name of county).
The condition of the within {or above) written recognizance is such
that if the within bound A. B. (of, etc.), keeps the peace and is of good
behaviour towards his Majesty and his liege people, and specially towards
C D. (of, etc.) for the term of now next ensuing, then the said
recognizance to be void, otherwise to stand in full force and virtuf».
Form 50.
(Section 748.)
Form of Commitment in Default of Suretien.
: )
Canada,
Province of
County of
To all or anj( of the constables and other peace officers in the said county
of , and to the keeper of the common gaol of the said county
of , at , in the said county.
Whereas on the day of {instant) complaint on oath
was made before the undersigned {or J. L.. Esquire), a justice of the peace
in and for the said county of , by C. D., of . in the
said county, {labourer), that A. B., of (etc.). on the day of ,
at aforesaid, did threaten {etc., follow to the end of the complaint,
as in form above, in the past tense, then) : And whereas the said A. B. was
this day brought and appeared before me, the said justice {or J. L., Esquire,
a justice of the peace in and for the said county of ) to answer
unto the said complaint ; and having been required by me to enter into his
own recognizance in the sum of , with two sufficient sureties in the
sum of each, to keep the peace and be of good behaviour towards
His Majesty and his liege people, and especially towards the said C. D., has
refused and neglected, and still refuses and neglects, to find such sureties :
These are. therefore, to command you, and each of you, to take the said
A. B., and him safely to convey to the common gaol at aforesaid, and
there to deliver him to the keeper thereof, together with this precept : And I
do hereby command you. the said keeper of the said common gaol, to receive
the said A. B. into your custody in the said common gaol, there to imprison
584 RECOGNIZANCE TO TEY AN APPEAL.
him for the space of , or until he shall otherwise be discharged in
dae course of law, unless he, in the meantime, finds sufficient sureties to
keep the peace as aforesaid.
Given under my hand and seal, this day of , in the
year , at , in the county aforesaid.
J. S., [SEAL.]
J. P. {name of county).
FOBH 51.
(Section 750.)
Form of Recognizance to try the Appeal.
Canada, 1
Province of , >
County of . )
Be it remembered that on , A. B., of (labourer),
and L. M., of , (grocer), and N. O., of , (yeoman),
personally came before the undersigned , a justice of the peace in
and for the said county of , and severally acknowledged themselves
to owe to our Sovereign Lord the King, the several sums following, that is
to say, the said A. B. the sum of , and the said L. M. and N. O. the
sum of , each, of good and lawful money of Canada, to be made
and levied of their several goods and chattels, lands and tenements respec-
tively, to the use of our said Lord the King, his heirs and successors, if he
the said A. B. fails in the condition endorsed (or hereunder written).
Taken and acknowledged the day and the year first above mentioned
at , before me.
J. S.,
J. P. (name of county).
The condition of the within (or the above) written recognizance is such
that if the said A. B. personally appears at the (next) General Sessions of
the Peace (or other Court discharging the functions of the Court of General
Sessions, as the case may 6e), to be holden at . on the
day of , next, in and for the said county of , and tries
an appeal against a certain conviction, bearing date the day
of , (instant), and made by (me) the said justice, whereby he,
the said A. B., was convicted, for tnat he, the said A. B., did on the
day of , at , in the said county of ,
(here set out the offence as stated in the conviction) ; and also abides
by the judgment of the court upon such appeal and pays such costs as are
by the court awarded, then the said recognizance to be void, otherwise to
remain in full force and virture.
Form of Notice of such Recognizance to he given fo the Appellant and his
Sureties.
Take notice, that you, A. B.. are bound in the sum of , and
you. L. M. and N. O., in the sum of , each, that you the said
A. B. will personally appear at the next General Sessions of the Peace to
be holden at , in and for the said county of , and try
an appeal against a conviction (or order) dated the day
of , (instant), whereby you A. B. were convicted of (or ordered,
etc.), (stating offence or the subject of the order shortly), and abide
by the judgment of the court upon such appeal and pay such costs as are
by the court awarded, and unless you the said A. B. personally appear
and try such appeal and abide by such judgment and pay such costs accord-
ingly, the recognizance entered into by you will forthwith be levied on you,
and each of you.
Dated at , this day of , one thousand
nine hundred and
CERTIFICATE AND WARRANT FOR COSTS ON APPEAL. 585.
FoEM 52.
(Section 759.)
Certificate of Clerk of the Peace that the Costa of an Appeal are not paid.
Office of the clerk of the peace for the county of
Title of the Appeal.
I hereby certify that at a Court of General Sessions of the Peace, (or
other court discharging the function of the Court of General Sessions, as
the case may be), holden at , in and for the said county, on
last pa-st, an appeal by A. B. against a conviction {or order)
of J. S., Esquire, a justice of the peace in and for the said county, came
on to be tried, and was there heard and determined, and the said Court of
General Sessions (or other court, as the case may 6e) thereupon ordered
that the said conviction (or order) should be confirmed (or quashed), and
that the said (appellant) should pay> to the said (respondent) the sum
of , for his costs incurred by him in the said appeal, and which
sum was thereby ordered to be paid to the clerk of the peace for the said
county, on or before the day of (instant), to be by
him handed over to the said (respondent), and I further certify that the
said sum for costs has not, nor has any part thereof, been paid in obedience
to the said order.
Dated at , this day of , one thousand
nine hundred and
G. H.,
Clerk of the Peace.
FoBM 53.
(Section 759.)
Warrant of Distress for Costs of an Appeal against a Conviction or Order.
To all or any of the constables and other peace officers in the said county
of
Canada,
Province of ,
County of
Whereas (etc., as in the warrants of distress, forms S9 or JfO, and to
the end of the statement of the conviction or order, and then thus) And
whereas the said A. B. appealed to the Court of General Sessions of the
Peace (o/ other Court discharging the functions of the Court of General
Sessions, as the case may be), for the said county, against the said convic-
tion or order, in which appeal the said A. B. was the appellant, and the
said _C. D. (or J. S. Esquire, the justice of the peace who made the said
conviction (or order) was the respondent, and which said appeal came on
to be tried and was heard and determined at the last General Sessions of
the Peace (or other court, as the case may he) for the said county, holden
at .on ; and the said court thereupon ordered that
the said conviction (or order) should be confirmed (or quashed) and that
the said (appellant) should pay to the said (respondent) the sum of
for his costs incurred by him in the said appeal, which said sum was to be
paid to the clerk for the said county, on or before the day
of , one thousand nine hundred and , to be by him
handed over to the said C. D. ; and whereas the clerk of the peace of the
said county has, on the day of. (instant), duly
certified that the said sum for costs had not been paid : * These are, there-
fore, to command you, in His Majesty's name, forthwith to make distress
of the goods and chattels of the said A. B., and if, within the term of
days next after the making of such distress, the said last
mentioned sum, together with the reasonalile charges of taking and keeping
the said distress, are not paid, then to sell the said goods and chattels so
by you distrained, and to pay the money arising from such sale to the clerk
586 COMMITMENT FOR WANT OF DISTRESS.
of the peace for the said county of , that he may pay and
apply the same as by law directed ; and if no such distress can be found,
then to certify the same unto me or any other justice of the peace for the
said county, that such proceedings may be had therein as to law appertain.
Given under my hand and seal, thin day of , in the
year , at , in the county aforesaid.
O. K., [SEAL.]
J. P. {name of county).
FoBM 54.
(Section 759.)
Warrant of Commitment for Want of Distress in the last Case.
Canada,
Province of ,
County of
To all or any of the constables and other peace officers in the said county
of , and to the keeper of the common gaol of the said county
of , at , in the said county of
Whereas (etc., as in form 53, to the asterisk * and then thus) : Agd
whereas, afterwards, on the day of . in the year
aforesaid, I, the undersigned, issued a warrant to all or any of the peace
oflScers in the said county of . commanding them, or any of them,
to levy the said sum of , for costs, by distress and sale of the
goods and chattels of the said A. B. : And whereas it appears to me, as well
by the return to the said warrant of distress of the peace officer who was
charged with the execution of the same, as otherwise, that the said peace
officer has made diligent search for the goods and chattels of the said l\. B..
but that no sufficient distress whereon to levy the said sum above mentioned
could be found : These are, therefore, to command you, the said peace officers,
or any of you, to take the said A. B., and him safely to convey to the
common gaol of the said county of , at aforesaid
and there deliver him to the said keeper thereof, together with this precept :
And I do hereby command you, the said keeper of the said common gaol, to
receive the said A. B. into custody in the said common gaol, there to
imprison him for the term of , unless the said sum and all costs
and charges of the said distress and of the commitment and of the conveying
of the said A. B. to the said common gaol, are sooner paid unto you, the
said keeper : and for so doing this shall be your sufficient warrant.
Given under my hand and seal, this day of -in the
year , at , in the county aforesaid.
O. K.. [SEAL.1
J. P. (name of county).
Form 55.
(Section 799.)
Conviction.
Canada,
Province of ,
County of
Be it remembered that on the day of , in the
year , at . A. B.. being charged before me, the
undersigned , of the said (city) (and consenting to my trying
the charge summarily), is convicted before me, for that he, the said A. B.,
SUMMAEY CONVICTION — CERTIFICATE OF DISMISSAL. 587
(etc., stating the offence, and the time and place when and tohere com-
mitted), and I adjudge the said A. B., for his said offence, to be imprisoned
in the (and there kept at hard labour, if it is so adjudged) for
the term of
Given under my hand and seal, the day and year first above mentioned,
at aforesaid.
G. F., [SEAL.]
Police Magistrate
for
(or as the case may he).
FoBM 56.
('Section 799.)
Conviction upon a Plea of Ouilty.
Canada, "j
Province of , j-
County of , J
Be it remembered that on the day of , in the
year , at , A. B., being charged before me, the
undersigned, ^ of the said (city) (and consenting to my trying
the charge summarily), for that he, the said A. B., (etc., stating the offence,
and the time and place when and where committed), and pleading guilty to
such diarge, he is thereupon convicted before me of the said offence ; and I
adjudge him, the said A. B. for his said offence, to be imprisoned in the
(and there kept at hard laboui', if it is so adjudged) for the
term of
Given under my hand and seal, the day and year first above mentioned,
at aforesaid.
G. F., [SEAL.]
Police Magistrate
for
(or as the case may he)
Form 57.
(Section 799.)
Certificate of Dismissal.
Canada, "i
Province of , J.
County of . j
I, the undersigned, , of the city (or as the case may he) of
, certify that on the day of in
the year , at aforesaid, A. B., being charged before
me (and consenting to my trying the charge summarily), for that he, the
said A, B., (etc., stating the offence charged, and the time and place when
and where alleged to have heen committed), I did, after having summarily
tried the said charge, dismiss the same.
Given under my hand and seal, this day of , in the
year , at aforesaid.
G. F., [SEAL.]
Police magistrate
for
(or as the case may he).
588
CERTIFICATE OF DISMISSAL — CONVICTION.
(Section 813.)
Canada,
Province of
County of
FoBM 58.
Certificate of Dismiasah
]
I
, justices of the peace for the
of , [or if a recorder, etc., I a.
of the of ,08 the case may he), do hereby
certify that on the day of , in the year
at , in the said of , A. B. was brought
before us, the said justices (or me, the said ), charged with the
following oCfence, that is to say {here state briefly the particitlara of the
charge), and that we the said justices, (or I, the said ) there-
upon dismissed the said charge.
Given under our hands and seals (or my hand and seal), this
day of , in the year , at , aforesaid.
J. P. [SEAL.]
J. R. [seal.]
or S. J. [SEAL.]
(Section 814.)
FOBM 59.
Conviction.
Canada, \
Province of , }■
County of . i
Be it remembered that on the day of , in the
year^ , at , in the county of , A. B. is
convicted before us, J. P. and J. R., justices of the peace for the said county
(or me, S. J., recorder, of the , of , or as the case
may be) for that he, the said A. B., did (specify the offence and the time and
pldce when and where the same was committed, as the case may he. hut
without setting forth the evidence), and we the said J. P. and J. R. (or I,
the said S. J.), adjudge the said A. B., for his said offence, to be imprisoned
in the with (or without) hard labour (in the discretion of the
justice) for the space of , (or we) (or 1) adjudge the saifl
A. B., for his said offence, to forfeit and pay (here state the penalty actually
imposed), and in default of immediate payment of the said sum, to be im-
prisoned in the with (or without) hard labour (in the discre-
tion of the justice) for the term of , unless the said sum is sooner
paid.
Given under our hands and seals (or my hand and seal), the day and
year first above mentioned.
J. P. [SEAL.]
J. R. [SEAL.]
or S. J. [SEAL.]
Form eo.
(Section 827.)
Form of Record when the Prisoner Pleads Guilty.
Canada, "j
Province of , \
County of . J
Be it remembered that A. B. being a prisoner in the gaol of the said
county, on a charge of having on tlie , day of , in the
EECOKD AT SPEEDY TRIAL^ CONVICTION AND SENTENCE. 589
year , stolen, etc., (one cow the property of C. D., or as the
case may he, stating iriefly the offence), and being brought before me
(describe the judge) on the day of in the
year , and asked by me if he consented to be tried before me
without the intervention of a jury, consented to be so tried ; and that the
said A, B, being then arraigned upon the said charge, he pleaded guilty
thereof, whereupon I sentenced the said A. B. to (here insert such sentence
as the law allows and the judge thinks right).
Witness my hand this day of , in the year
O. K.,
Judge.
Fork 61.
(Section 833.)
Form of Record when the Prisoner Pleads Not Ouilty.
Canada, 1
Province of » r
County of , J
Be it remembered that A, B. being a prisoner in the gaol of the said
county, committed for trial on a charge of having on the day
of , in the year , stolen, etc., (one cow, the property
of C. D., or as the case may be, stating briefly the offence) and having been
brought before me (describe the judge) on the day of ,
in the year , and asked by me if he consented to be tried before
me without the intervention of a jury, consented to be so tried ; and
that upon the day of , in the year , the
said A. B., being again brought before me for trial, and declaring himself
ready, was arraigned upon the said charge and pleaded not guilty ; and after
hearing the evidence adduced, as well in support of the said charge as for
the prisoner's defence (or as the case may be), I find him to be guilty of
the offence with which he is charged as aforesaid, and I accordingly sentence
him to (here insert such sentence as the law allows ana the judge thinks
right), (or 1 find him not guilty of the offence with which he is charged,
and discharge him accordingly),
this
Witness my hand at
in the County of'
day of
, in the year
O.K.,
Judge.
Form 62.
(Section 842.)
Warrant to Apprehend Witness.
Canada,
Province of ,
County of .
To all or any of the constables and other peace oflScers in the said county
of
Whereas it having been made to appear before me, that B. F.,
of , in the said county of , is likely to give material
evidence on behalf of the prosecution (or defence, as the case may be) on
the trial of a certain charge of (as theft, or as the case may be), against
A. B., and that the said E. F. was duly subpoenaed (or bound under recog-
nizance) to appear on the day of , in the
year , at , in the said county at _ o'clock
(forenoon or afternoon, as the case may be), before me, to testify what he
knows concerning the said charge against the said A. B.
590 FORMS FOR INDICTMENTS AND HEADINGS.
And whereas proof has this daj- been made before me upon oath of
Buch subpoena having been duly served upon the said E. F., (or of the said
E. F. having been duly bound under recognizance to appear before me, aa
the case may be) ; and whereas the said E. F. has neglected to appear at the
time and place appointed, and no just excuse has been offered for such
neglect : These are, therefore, to command you to take the said E. F., and to
bring him and have him forthwith before me, to testify what he knows
concerning the said charge against the said A. B., and also to answer big
contempt for such neglect.
Given under my hand this day of , in the
year
O. K-.,
Judge.
FOBM 63.
(Sections 845 and 856.)
Headings of Indictment.
In the (name of the court in which the indictment is found).
The jurors for our Lord the King present that
(Where there are more counts than one, add at the beginning of each
count) :
The said jurors further present that
FoR]£ 64.
(Section 852.)
Examples of the manner of stating offences.
(a) A. murdered B. at , on
(6) A. stole a sack of flour from a ship called the ,
at , on
(c) A. obtained by false pretences from B., a horse, a cart and the
harness of a horse at , on
(d) A. committed perjury with intent to procure the conviction of B.
for an offence punishable with penal servitude, namely, robbery, by swearing
on the trial of B. for the robbery of C. at the Court of Quarter Sessions for
the county of Carleton, held at Ottawa, on the day of ,
19 ; first, that he, A., saw B. at Ottawa, on the day
of ; secondly, that B. asked A. to lend B. money on a watch
belonging to C. ; thirdly, etc.
or
(e) The said A. committed perjury on the trial of B. at a Court of
Quarter Sessions held at Ottawa, on for an assault alleged
to have been committed by the said B. on C at Ottawa, on the
day of by swearing to the effect that the said B. could not
have been at Ottawa, at the time of the alleged assault, inasmuch as the
said A. had seen him at that time in Kingston.
(/) A., with intent to maim, disfigure, disable or do grievous bodily
harm to B. or with intent to resist the lawful apprehension or detainer of
A. (or C), did actual bodily harm to B. (or D.).
(g) A., with intent to injure or endanger the safety of persons on the
Canadian Pacific Railway, did an act calculated to interfere with an engine,
a tender, and certain carriages on the said railway on
at by (describe icith so much detail as is sufficient to give
the accused reasonable information as to the acts or omissions relied on
against him, and to identify the transactions).
(h) A. published a defamatory libel on B. in a certain newspaper,
called the , on the day of 19 , which libel
was contained in an article headed or commencing (describe with so much
detail as is sufficient to give the accused reasonable information as to the
part of the publication to be relied on against him), and which libel was
written in the sense of imputing that the said B. was (a« the case may he).
INDICTMENT AGAINST PERSON NOT IN CUSTODY. 591
FOBM 65.
(Section 879.)
Certificate of Indictment 'being Found.
Canada,
Province of ' ,
County of
I hereby certify that at a Court of (Oyer and Terminer, or General
Gaol Delivery, or General Sessions of the Peace) holden in and for the
county of , at , in the said (county), on ,
a bill of indictment was found by the grand jury against A. B., therein
described as A. B., late of , {labourer), for that he {etc., stating
shortly the offence), and that the said A. B. has not appeared or pleaded
to the said indictment.
Dated this day of , in the year
Z. X.
{Title of officer.)
Form 66.
(Section 880.)
Warrant to Apprehend a Person Indicted.
Canada,
Province of ,
County of
To all or any of the constables and other peace officers in the said county
of
Whereas it has been duly certified by J. D., clerk of the {name the
court) {or E. G., deputy clerk of the Crown or clerk of the peace, or as the
case may be), in and for the county of , that {etc., stating the
certificate) : These are, therefore, to command you in His Majesty's name
forthwith to apprehend the said A. B., and to bring him before (me) or
some other justice or justices of the peace in and for the said county, to be
dealt with according to law.
Given under my hand and seal, this day of , in
the year , at , in the county aforesaid.
J. S., [SEAL.]
J. p. {name of county).
FoBM 67.
(Section 881.)
Warrant of Commitment of a Person Indicted.
Canada,
Province of ,
County of
To all or any of the constables and other peace officers in the said county
of , and the keeper of the common gaol at ,
in the said county of
Whereas by a warrant under the hand and seal of , (o)
justice of the peace in and for the said county of dated ,
after reciting that it had been certified by J. D. {etc., as in the certificate),
the said justice of the peace commanded all or any of the constables or peace
officers o'f the said county, in His Majesty's name, forthwith to apprehend
the said A. B., and to bring him before {him) the said justice of the peace
592 WAERANT TO DETAIN PEISONER ON FEESH INDICTMENT.
or before some other justice or justices in and for the said county, to be
dealt with according to law ; and whereas the said A. B. has been appre-
hended under and by virtue of the said warrant, and being now brought
before (me) it is hereupon duly proved to (me) upon oath that the said
A. B. is the same person who is named and charged as aforesaid in the said
indictment: These are therefore to compaand you, the said constables and
peace officers, or any of you, in His Majesty's name, forthwith to take and
convey the said A. B. to the said common gaol at , in the said
county of , and there to deliver him to the keeper thereof, to-
gether with this precept : And (/) hereby command you the said keeper
to receive the said A. B. into your custody in the said gaol, and him there
safely to keep until he shall thence be delivered by due course of law.
Given under (my) hand and seal, this day of
in the year , at , in the county aforesaid.
J. S., [SEAL.]
J. P.,. (name of county.)
Form 68.
(Section 882.)
Warrant to detain a Person indicted who is already in Custody for another
Offence.
Canada,
Province of
County of
To the keeper of the common gaol at , in the said county
of
Whereas it has been duly certified by J. D., derk of the (name the
court) {or deputy clerk of the Crown or clerk of the peace of and for the
county of , {or as the case may ie), that {etc., stating the
certificate) ; And whereas (/ am) informed that the said A. B. is in your
custody in the said common gaol at aforesaid, charged with some
offence, or other matter; and it being now duly proved upon oath before
(me) that the said A. B., so indicted as aforesaid, and the said A. B., in
your custody, as aforesaid, are one and the same person : These are there-
fore to command you, in His Majesty's name, to detain the said A. B.
in your custody, in the common gaol aforesaid, until by a writ of habeas cor-
pus he shall be removed therefrom, for the purpose of being tried upon the
said indictment, or until he shall otherwise be removed or discharged out
of your custody by due course o'f law.
Given under {my) hand and seal, this day of
in the year , at , in the county aforesaid.
J. S., [SEAX.]
J. P., {name of county.)
Form 69.
(Section 925.)
Challenge to Array.
Canada,
Province of ,
County of
The King ] The said A. B., who prosecutes for our Lord the King {or
V. r the said C. D., as the case may be) challen?:es the array of
C. D. J the panel on the ground that it was returned by X. Y.. sheriff
of the county of {or E. F., deputy of X. Y., sherifif of the
county of {as the case may be), and that the said X. Y. {or
E. F., as the case may be), was guilty of partiality {or fraud, or wilful mis-
conduct) on returning said panel.
CHALLENGE TO POLL — CERTIFYING OF DEATH SENTENCE. 593
WOKis. 70.
Challenge to Poll.
(Section 936.)
Canada,
Province of
County of
The King The said A. B. who prosecutes, etc. (or the said C. D., as
V. the case may be) challenges G. H., on the ground that his
C. D. name does not appear in the panel, [or that he is not indif-
ferent between the King and the said C D., or that he was convicted and
sentenced to death, or penal servitude, or imprisonment with hard labour,
or exceeding twelve months, or that he is disqualified as an alien.]
FOBM 71.
(Section 1068.)
Certificate of Execution of Judgment of Death.
I. A. B., surgeon (or as the case may be) of the (describe the prison),
hereby certify that I, this day, examined the body of C D. on whom judg-
ment of death was this day executed in the said prison and that on such
examination I found that the said C. D. was dead.
Dated this day of , in the year
(Signed), A.B.
FoBM 72.
(Section 1068.)
Declaration of Sheriff and Others.
We, the undersigned, hereby declare that judgment of death was this
day executed on C. D., in the (describe the f>rison) in our presence.
Dated this day of , in the year
E. F., Sheriff of
Ir. M., Justice of the Peace for
G. H., Gaoler of,
etc., etc.
(Section 1097.)
Form 73.
Certificate of Non-appearance to be endorsed on the Defendant's
Recognizance.
I hereby certify that the said A. B. has not appeared at the time and
place in the said condition mentioned, but therein has made default, by
reason whereof the within written recognizance is forfeited.
Dated at this day of , A.D. 19
J. S., [SEAL.]
J. P., (name of county.)
c.c.p. — 38
594
WRIT OF FIERI FACIAS — JUSTICES' RETURN.
(Section 1105.)
FOBK 74.
Writ of Fieri Facias.
George V., by the Grace of God, etc.
To the sheriff of , greeting:
You are hereby commanded to levy of the goods and chattels, lands and
tenements, of each of the persons mentioned in the roll or extract to this
writ annexed, all and singular the debts and sums of money upon them
severally imposed and charged, as therein is specified ; and if any of the
said several debts cannot be levied, by reason that no goods or chattels,
lands or tenements can be found belonging to the said persons, respectively,
then, and in all such cases, that you take J;he "bodies of such persons, and
keep them safely in the gaol of your county, there to abide the judgment of
our court (as the case may be) upon any matter to be shown by them,
respectively, or otherwise to remain in your custody as aforesaid, until such
debt is satisfied unless any of such persons respectively gives suflScient
security for his appearance at the said Court, on the return day hereof,
for which you will be held answerable ; and what you do in the premises
make appear before us in our court (as the case may be), on the
day of term next, and have then and there this writ. Witness,
etc., G. H., clerk (as the case may be).
(Section 1133.)
Form 75.
Justices* Return.
Retubn of convictions made by me (or us, as the case may be), during the
quarter ending , 19 . •
2
s
«
o
i
g
c
«
o
•
1
2
Z
c
_o
u
•?
e
o
O
1
IS
3
i-s
be
c
u
'>
B
O
O
o
is
«
c
>>
"3
c
^ ®
c a
as
<
^ .
•d-d
'is
§1
|2
1
>>
,o
b
«
O
11
|l
O X
H
If not paid, why not, and general observa-
tions, if any.
J. S., Convicting Justice.
or
J. S. and O. K., Convicting Justices (as the case may be).
FOEM OF WEAPON PERMIT. 595
"FOEM 76.
(Added by 3-4 Geo. V, Chap. 13.)
" Weapon Permit.
" (Insert name of place of issue and date.)
"Permission is liereby given to (Insert name of
holder of permit) of , to carry (insert character of
weapon) for (insert duration of permit).
" Reason for granting permit.
" (Here are to be inserted the reasons for issuing permit.)
" (Name and office of person issuing permit.)"
596 NOTICE OF APPLICATION FOE CEKTIORABI.
APPENDIX A.
GENERAL FORMS.
FORMS IN CERTIORARI PROCEEDINGS.
nOnCB OF APPXJCATIOIT FOB CEBTIOaABI.
In the (Name of Court to 6e applied to).
The King v. A. B.
To
J. S., Esquire,
One of His Majesty's Justices of the Peace (or Police Magistrate) for
the of
Take notice that, inasmuch as A. B., of was on the
day of 19 , at the of in the of
, convicted by you of having {Here state the offence, as in the con-
viction), a motion vfUI on the day of instant at ten
o'clock in the forenoon, or so soon thereafter as counsel can be heard, be
made on behalf of the said A. B. before a Judge of this Honourable Court
sitting at for an order for a writ of certiorari to issue out of this
Court, directed to you and to the Clerk of the Peace for the of
, for the removal of the said conviction into this Court for the pur-
pose of having the same quashed and the said A. B. discharged therefrom,
upon the ground that the said conviction is invalid, (or, that the penalty
imposed is illegal and beyond or in excess of your jurisdiction, or as the
case may be), for the foUowdng reasons: (Here set out the reasons relied
upon).
Dated at this day of 19 .
C. D.,
Solicitor for the said A. B.
AFFIDAVIT OF SERVICE OF NOTICE.
In the (Name of Court to be applied to).
The King v. A. B.
I, of , being duly sworn, make oath
and say : —
1. That on the day of 19 , at I did serve
J. S., the Justice of the Peace (or Police Magistrate), named in the notice
hereunto annexed and marked exhibit A., with a true copy of the said
notice, by then and there delivering to and leaving with him the said true
copy of the said notice.
2. That I was present at the trial and conviction of the said A. B., of
the offence mentioned in the said notice ; and I personally know the person
BO served by me as aforesaid to be the said J. S., the Justice (or Police
Magistrate) by whom the said conviction was made, (or otherwise, as the
case may be, showing the means of identification of the Justice or Magis-
trate).
SwoBN, etc.
MOTION FOB CEBTIORABI.
In the (Name of Court applied to).
The King v. A. B.
Motion, on the part of the defendant, that.
1. In view of the aflSdavit herewith filed of in verification
of exhibits B, C, D, and E, as true copies of the proceedings therein men-
tioned (or, — if copies of the proceedings cannot be obtained, — " explaining
the purport of the proceedings therein mentioned and setting forth the
AFFIDAVITS IN SUPPORT OF MOTION — ORDER FOR CERTIORARI. 597
efforts made to ohtain and the reasons for not being able to obtain copies
thereof.")
2. And, in view of the hereunto subjoined aflSdavit of the defendant and
of the facts therein alleged and the grounds thereby appearing.
A writ of certiorari be ordered to issue for the removal into this Hon-
ourable Court of the said conviction and warrant of commitment, for the
purpose of having the same quashed and the defendant discharged there-
from.
Of counsel for the said A. B.
AFFIDAVIT AS TO PEOCEEDINGS.
In the (Name of Court applied to).
The King v. A. B,
I, of , , being duly sworn, made oath and
say : —
1. That the several paper writings hereunto annexed, marked respec-
tively B, C, D and E, to this my aflBdavit, are true copies of the original
documents of which they severally purport to be copies and were copied by
me from the originals now in the hands of J. S. Esquire, a Justice of the
Peace (or Police Magistrate) for the , of , (or now on
file in the office of the clerk of the peace for the of ) .
2. That I have examined and carefully compared the warrant of commit-
ment now in the hands of the keeeper of the common gaol for the county
of , (or as the case may be), upon which the said A. B. is now
held in custody in the said gaol, (or is committed under the said conviction,
or as the case may be) ; and that the paper writing hereunto annexed
marked exhibit , to this my affidavit, is a true copy of the said
warrant of commitment.
SwoKN, etc.
AFFIDAVIT OF DEFENDANT.
In the (Name of Court applied to).
The King v. A. B.
I, A.B., of , in the of , being
duly sworn, make oath and say : —
1. I am the defendant above named.
2. (Set forth the facts showing the conviction and warrant of commit-
ment to be bad, and the grounds upon which the application for certiorari
and for quashing the conviction are based.)
Sworn, etc.
ORDER FOR CERTIORARI.
In the (Name of Court).
Tuesday, the day of
Present (Name of Judge.)
The King v. A. B.
Upon the application of the said A. B., upon reading the notice served
herein and the affidavit of service thereof upon J. S. Esquire, the justice of
the peace (or police magistrate) therein named and upon reading the affi-
davit of filed, and the exhibits therein referred to, and the affi-
davit of the said A. B. and the other papers filed on his behalf upon this
motion, and upon hearing what was said by the respective solicitors (or
counsel) for the said A. B., and for the prosecutor E. F., and also for the
convicting or committing magistrate (or, as the case may be).
It IS ORDERED that a writ of certiorari do issue out of this Court
directed to J. S. Esquire, one of His Majesty's justices of the peace (or
police magistrate) for the of , (as the case may be), to remove
598 PORM OF WRIT OF CERTIORARI AND RECOGNIZANCE.
and return into this Court all and singular the conviction and all other pro-
ceedings, and all things touching the same, had and taken against the said
A. B. before the said justice of the peace (or police magistrate) upon the
information of for that the said A. B., etc., (Here set out the
charge).
WBIT OF CEBTIOBABI TO A JUSTICE OF THE PEACE TO BETUBN A CONVICTION.
Canada, \ George the Fifth, by the Grace of God, of the
Province of , [ United Kingdom of Great Britain and Ireland,
County of , [ and of the British Dominions beyond the seas,
J King, Defender of the Faith.
To , one of our justices, assigned to keep our peace,
in and for the county (or district) of and also to hear and
determine divers offences in the said (county) committed.
OBESTTINO:
We, being willing for certain reasons 'that all and singular records of
conviction of whatsoever trespasses and contempts against the Criminal
Code of Canada (or against the form of a certain statute, etc.), whereof
A. B. is before you convicted (as it is said) be sent by you before us, DO
COMMAND YOU that you send under your hand and seal before this Honour-
able in days from (or immediately on
the receipt of this writ) all and singular the said records of conviction with
all things touching the same, as fully and perfectly as they have been made
by you and now remain in your custody or power, together with this our
writ, that we may further cause to be done therein what of right and
according to law we shall see fit.
In witness whebeof, we have caused the seal of our Court of
to be hereunto aflSxed at otir (city) of this day of
in the year of our reign
Clerk of the Croxon.
CEBTIOBABI — BECOQNIZANCE.
Be it BEiMEMBEBED, that, on the day of in the
year of the reign of Our Sovereign Lord, Geobge the Fifth,
(etc.), G. H. of (merchant), and M. W. of (gentle-
man) came before me, J. S. Esquire, one of the keepers of the peace and
justices of Our Lord, the King, in and for the (county) of and
acknowledged to owe to Our Sovereign Lord the King the sum of
to be levied upon their goods and chattels, lands and tenements to His
Majesty's use, upon condition that if A. B. shall prosecute with effect,
without any wUful or affected delay, at his own proper costs and charges.
a writ of cebtiobabi issued out of the Court of our said Lord the
King, at . to remove into the said Court all and singular the
records of conviction of whatsoever trespasses and contempts against the
Criminal Code of Canada (or against the form of a certain statute, etc.),
whereof the said A. B. is convicted before me, the said J. S., and shall pay
to the prosecutors within next after the said record of
conviction (or order) shall be confirmed in the said Court, all their said
full costs and charges to be taxed according to the course of the said Court,
then this recognizance to be void, or else to remain in full force.
Taken and acknowledged the day and year aforesaid, at
before me,
J. S.
G. H.
M. W.
Note. — A blank recognizance is usually transmitted with the writ of
certiorari from the office of the Court issuing it and when taken and
acknowledged the recognizance is returned with tlie writ.
If the conviction be quashed, the recognizance is cancelled by being
struck through, and is marked in the margin " discharged, because the con-
viction is quashed."
In the
AFFIDAVITS OF JUSTIFICATION AND EXECUTION. 599
FOBM OF AFFIDAVIT OF JUSTIFICATION BY SURETY.
The Kin&v. A. B.
1. E. F., of the of in the county of
(occupation) make oath and say :
- 1, That I am surety (or one of the sureties, as the case may be)
proposed and named for the above named A. B. in the recognizance in this
matter hereunto annexed.
2. That I am a freeholder (or householder) residing at No. St.
in of in the said county of
3. That I am worth property to the amount of one hundred dollars
over and above what will pay all my debts and liabilities and every other
sum for which I am now liable, or for which I am bail, or surety in any
other matter.
4. That I am not bail or surety for any other person except in this
matter and except (stating in what matter and for how much, if any).
5. That my said property to the amount of the said sum of $100 con-
sists of household furniture (or farm stock, implements, money deposited
in bank or bank stock or land, (describing it, or whatever it consists of),
to the value of about dollars.
Sworn before me at the "1
of in the I E. F,
County of on the j
day of A. D. 19 . ^
Signed : O. P.,
A Commissioner, etc.
In the
FORM OF AFFIDAVIT OF EXECUTION.
The King v. A. B.
I, M. N., of the of in the county of
(occupation) make oath and say :
1. That I was personally present and did see the hereunto annexed
recognizance duly signed, sealed and executed by A. B., and E. F. and G. H.,
the parties thereto, and by R. S., the justice of the peace for the said county
of , before whom the same was taken and acknowledged.
2. That the said recognizance was so executed, taken and acknow-
ledged at the of in the said county of
3. That I know the said parties and the said justice.
4. That I am a subscribing witness to the said recognizance.
Sworn before me at ,
in the county of
this day of , A.D. 19 .
A Commissioner.
RETURN TO A WRIT OF CERTIORARI.
(To be Endorsed on the Certiorari) .
The answer of the justice of the peace or police magistrate
within mentioned.
The execution of this writ appears in the schedule hereunto annexed.
Justice of the peace,
(or police magistrate.)
SCHEDULE.
(To be written as a separate document.)
I. one of the justices of the peace of Our Sovereign Lord
the King, assigned to keep the peace within the said (county) of
600 FOEMS ON MOTION TO QUASH CERTIOEABI.
and to hear and determine divers offences committed in the said {county),
by virtue of this writ of certiorari to me delivered, DO, under my seal,
CEETirr unto His Majesty, in His Court of , the record of convic-
tion and all proceedings taken before me, of which mention is made in the
Baid writ.
In witness whereof, I have hereunto set my hand and seal at the
of this day of A.D. 19 .
All the proceedings should be attached to the certiorari and returned
as required by the writ.
If the conviction has been already filed with the derk of the peace, the
return will be made by the latter; and the justice of the peace will, in the
schedule to his own return, explain the fact, as follows : —
SUBSTirUTED SCHEDULE.
I, , one of the justices of the peace for Our Sovereign Lord,
the King, assigned to keep the peace within the said of ,
do certify that, before the receipt of the writ of certiorari, the record of
conviction and aU proceedings taken before me of which mention is made
in the said writ were sent and delivered by me to the derk of the peace of
the said , of , according to law and at the
time of the receipt of the said writ by me I had not nor have I now any of
the said proceedings remaining in my custody, control or keeping.
In witness whereof, I have hereunto set my hand and seal at the
of this day of A.D. 19 .
FOBM OF NOTICE OF OBJECTION TO BE TAKEN TO CEBTIOBABI.
In the (Name of Court).
The King v. A. B.
Take notice that upon the motion to quash the conviction of you, the
said A. B., objection wUl be taken on behalf of C. D., the prosecutor, {or
of G. H., the convicting magistrate or convicting justice), that the writ of
certiorari herein and the return thereto are invalid, on the ground that six
days' previous notice was not given to the said convicting magistrate
{or convicting justice), of the application for the said certiorari, {or that
the recognizance filed is insufficient, for the following reasons, [stating
them], or that there has been delay [mentioning the circumstances'] in
prosecuting the said writ of certiorari, etc., etc., or as the case may be).
Dated at . this day of , A.D. 19 .
B. F.
Solicitor for the said C D., prosecutor, {or
G. H. the magistrate or justice above
named).
To the said A. B.
NOTICE OF MOTION TO SUPERSEDE CEBTIOBABI.
In the {Name of Court).
The King v. A. B.
Take notice that on the day of instant at ten
o'clock in the forenoon or so soon thereafter as counsel can be heard, a
motion on behalf of C. D., the prosecutor, {or of G. H., the convicting
magistrate or convicting justice), will be made before a Judge of this hon-
ourable Court, sitting at , for an order superseding and quashing
the writ of certiorari issued herein and for the return of the conviction and
other proceedings and papers, to the said convicting magistrate {or con-
victing justice or to the clerk of the Crown and peace for the county [or
district] of ) • on the ground that no notice was given to the said
magistrate {or justice), six days before the application for the said
AFFIDAVIT IN SUPPORT OF MOTION — MOTION PAPER, 601
writ as required by the statute in that behalf (or that the notice was in-
sufficient [giving reasons], or that no recognizance was filed as required by
law, or that the recognizance filed is insufficient [giving reasons], or was
not duly entered into and executed [giving reasons], or that there has been
delay [giving the circumstances] in prosecuting the said writ of certiorari,
etc., etc., (or as the case may be), and for an order directing you, the said
defendant, A. B,, to pay to the said prosecutor, (or the convicting magis-
trate or justice), his costs of and incidental to the application for the said
writ of certiorari and this motion, and for such further order as may seem
meet.
And take notice that upon this motion will be read the affidavit of
the exhibits therein referred to, and the proceedings and papers
herein.
Dated at this day of , A.D. 19 ,
E. F.,
Solicitor for the said C D., prosecutor (or
G. H., the magistrate, or justice above
named).
To the said A. B.,
and to
his Solicitor.
AFFIDAVIT IN StJPPOET OF MOTION TO SUPERSEDE CEBTIOEABI.
In the (Name of Court).
The King v. A. B.
I, , of the of in the county (or
district) of , make oath and say:
1. That I am the prosecutor (or the magistrate or justice) named in
the writ of certiorari issued herein, a true copy of which is now shown to me
marked Exhibit A.
2. That the notice of motion for the said writ of certiorari was served
on the magistrate (or justice, or me) less than six days, efc, (Here
state the facts clearly) [or, if no notice at all was served on the magistrate
or justice, state the fact, or if the objection is as to the insufficiency of the
sureties, state it fully, or if the ground of the motion is delay in prosecut-
ing the writ and in moving to quash, or whatever else is or are the grounds
of the motion, set out the facts relied on.]
Sworn, etc.
MOTION PAPER ON APPLICATION TO QUASH.
In the
Before the Court the day of
A.D. 19 .
The King against A. B.
Motion on behalf of the above named A. B. upon reading the writ of
certiorari granted herein on the day of , A.D. 19 ,
and the papers filed in Chambers on the application therefor, the return
to the said writ and the papers thereto attached, and the recognizance also
filed for an order calling upon C. D., Esquire, Justice of the Peace (or
Police Magistrate), for the of , and E. F. (the
informant), upon notice to them of such order to be given to them
respectively, to shew cause why the conviction of the said A. B., upon the
information of the said E. F. for that he did (set out the charge as in the
conviction), shoujd not be quashed with costs upon the following, among
other grounds: (State the grounds).
Of Counsel for the said A. B.
602 RULES KISI AND ABSOLUTE TO QUASH CONVICTION.
WJLE NISI TO QUASH A CXJNVICTION.
The King v. A, B.
In the
A.D. 19 .
day, the day of
Upon the application of the said A. B. upon reading the writ of
certiorari issued on the day of , A.D. 19 , and
the papers filed in Chambers on the application therefor, the return of C D.,
Esquire, justice of the peace (or police magistrate), for the
of , or the clerk of the peace for the county of (o«
the ease may ie), to the said writ and the papers thereto attached, and
also the recognizance entered into by the said A. B., with a surety {or
sureties) also filed, and upon hearing counsel for the said A, B.
It is ordered that C. D., Esquire, justice of the peace (or police
magistrate), for the of and E. F., the prosecutor,
upon notice to them of this order, to be given to them respectively, shall,
on the day of , A. D. 19 , at
o'clock, in the forenoon, or so soon thereafter as counsel can be heard
before this Court at , shew cause why a certain conviction made
by the said C D., justice of the peace (or police magistrate), on the infor-
mation of the said E. F., whereby the said A. B. was convicted for that
(set out the charge as in the conviction), and which said conviction has
been removed into this Court under certiorari, should not be quashed with
costs, on the following grounds, amongst others: (Set out the grounds).
On motion of Mr. , of counsel for the said A. B.
By the Court.
Registrar.
RULE ABSOLUTE QUASHING CONVICTION.
In the the day of ,
A.D. 19 .
The King against A. B.
1. Upon the application of A. B. upon reading the rule nisi issued on
the day of , A.D. 19 , and the affidavit of service
thereof, the writ of certiorari, dated the day of , A.D.
19 , the return of the said writ and the papers thereto attached, and the
recognizance filed, and upon hearing counsel for the prosecutor, E. F., and
for the appellant, A. B., and for C. D., Esquire, justice of the peace (or
police magistrate) {or no one appearing for the said E. F. or C. D., although
duly notified).
2. It is ordered that the conviction of the said A. B. by C. D.,
Esquire, justice of the peace {or police magistrate) for the of
on information of the said E. F., for that {set out the charge)
be and the same is hereby quashed {and if costs are ordered) with costs
to be paid by the said to the said A. B.
3. And it is further ordered that the said A. B. be, and he is hereby
discharged from custody under the warrant of commitment issued upon
the said conviction.
4. And it is further ordered that no such action as is provided for by
section 1131 of the Criminal Code of Canada, and by the Revised Statutes
of , chapter , section , shall be brought against the
said C. D. and E. F., or either of them, or any person whomsoever.
On motion of Mr. , of counsel for said A. B.
By the Court.
Registrar.
FORMS IN HABEAS CORPUS PROCEEDINGS. 603
FORMS IN HABEAS CORPUS PROCEEDINGS.
NOTICE OF APPLICATION FOR HABE^AS CORPUS.
In the (Name of Court to be applied to).
The King (on information of A. B.) v. C. D.
Take notice that a petition, on behalf of the said C. D., will on the
day of A.D. 19 , at o'clock in the forenoon or
so soon thereafter as counsel can be heard, be made to a Judge of this
honourable Court, in Chambers at , for the issue of a writ of
habeas corpus to the keeper of the common gaol {or penitentiary) of the
county {or district of directing him to have before a Judge of
{Name of Court), the body of the said C. D., a prisoner detained in his
custody, so that there may be caused to be done thereupon what of right
and according to law the Court shall see fit to be done, for the following
among other reasons. {State them.)
And take notice that in support of the said petition there will be
read the affidavit of , herein filed therewith, and the exhibits
therein mentioned.
Dated at this day of 19 .
Solicitor for the said C. D.
To the said A. B.
To
the convicting justice {or magistrate).
And to
the Crown Attorney, {or Crown prosecutor),
or, as the case may be.
petition for habeas corpus.
In the {Name of Court).
The King v. C. D.
To the honourable {Name of Court), or to any one of tlie honourable
Judges thereof.
The petition of C. D., respectfully represents :
1. That, {State the facts from the laying of the information and the
issuing of the summons or warrant of arrest to the trial and conviction and
the issuing of the warrant of commitment thereon) .
2. That, {State the grounds upon which it is contended that the warrant
of commitment, or the conviction upon which it is issued, or both, is or are
illegal) .
3. That your petitioner is unlawfully detained in the said common gaol
{or penitentiary) of the county {or district) of , and is en-
titled to be discharged therefrom and to be released and set at liberty.
Wherefore your petitioner prays that an order be made for the issue
herein of a writ of habeas corpus under which your petitioner may be
brought before one of the Honourable Judges of this Honourable Court, that
it be, thereupon, declared that the gaid warrant of commitment, {or the
said conviction, or both), is (or are) illegal, null and void, that your peti-
tioner is unlawfully detained and imprisoned, and is entitled to be dis-
charged from the said common gaol, {or penitentiary), and to be released
and set at liberty, and that he be accordingly ordered to be forthwith dis-
charged from the said common gaol, {or penitentiary), and to be released
and set at liberty.
Dated at this day of , 19 .
Solicitor for the petitioner.
604 WRIT OF HABEAS CORPUS AND ORDER THEREFOR.
AFFIDAVIT IN SUPPOBT OF PETITION.
I. G. D., the above named petitioner, being duly sworn, do depose and
say: —
1. That the allegations of the foregoing petition are true.
2. That a copy of the said warrant of commitment is hereunto annexed
and marked exhibit " A."
And further the deponent saith not.
Sworn, etc.
OBDER FOB HABEAS CORPUS.
In the {Name of Court).
Before the Honourable Mr. Justice
In Chambers.
The day of , A.D. 19 .
The King v. C. D.
Upon the application of the said C. D., upon reading the petition and
affidavit of the said C. D.. herein filed, and a copy of the warrant of com-
mitment marked exhibit " A," annexed thereto, and upon hearing counsel
for the said C. D.
It is ordered that a writ of habeas corpus do issue out of this Court,
directed to the keeper of the common gaol, (or penitentiary), for the county
(or district), of , (or as the case may be), directing him to
have, before me (or a Judge of this Court), in Chambers, at
forthwith on receipt of the said writ, the body of C. D., a prisoner detained
in his custody, and that there be caused to be done thereupon what of right
and according to law shall be deemed fit to be done.
Registrar, (or derk).
(N.B. — ^The attendance of the prisoner at the argument upon a writ of
haieas corpus may be dispensed with by consent of his solicitor endorsed
upon the writ).
WRIT OF HABEAS CORPUS AD SUBJICIENDUM.
Canada. \ Geobge the E^fth, by the grace of God, of the
Province of I United Kingdom of Great Britain and Ireland
f and of the British Dominion
County (or district) of J King, Defender of the Faith.
To the keeper of our common gaol (or penitentiary) for our county (or
district) of , or his deputy or deputies, and to each of them.
Greetings :
We COMMAND YOU that you have before the Honourable for
at the Judge's Chambers in the Court House in our (city)
of , immediately after the receipt of this writ, the body of
, being committed and detained in our prison (or penitentiary),
under your custody (as it is said), together with the day and cause of the
taking and detaining of the said by whatsoever name the
said be called in the same, to undergo and receive aU and
singular such things as our said shall then and there consider
of him in that behalf, and that you have then and there this writ.
In wiTNi^ss whereof we have caused the seal of our Court of
for (as the case may be), to be hereunto affixed, at our (city) of
, this day of in the
year of our reign.
Clerk of the Croxon.
EETURN OF WRIT DISCHARGE OF PRISONER, 605
BETUBN OF WBIT OF HABEAS CORPUS.
By virtue of the within order, I, the keeper of the common
gaol {or penitentiary) at [etc.), do hereby return to the Honourable Mr.
Justice , (or as the writ directs), that C. D. is a prisoner in the
aforesaid, under a warrant of commitment hereunto annexed,
and that the said C. D. was committed to the said common gaol (or peni-
tentiary) under and by virtue of the said warrant of commitment on
; and the said C. D. is now detained in the said common gaol (or
penitentiary) by virtue of the said warrant and for no other cause or reason
whatsoever, (or, as the case may be, with regard to other warrants of
detention, if any).
[Add, — if the prisoner's attendance has not been dispensed with, — a
dause stating that the body of the prisoner is produced.]
Dated at this day of A.D. 19 .
Keeper of (etc.).
NOTICE OF MOTION FOB DISCHABGE.
In the (Name of Court).
The King v. C. D.
To , the convicting justice (or magistrate).
To , the prosecutor.
And to , the Crown Attorney (or Crown prosecutor, or as
the case may be).
Take notice that a motion will be made before a Judge of this Honour-
able Court sitting in Chambers at , on , at
o'clock in the forenoon, or so soon thereafter as counsel can be heard for
the discharge of the said C. D. from the common gaol (or penitentiary) of
(etc.), upon the return of the writ of habeas corpus herein issued, directing
the keeper of (etc.), to have before a Judge of this Honourable Court the
body of the said O. D., now in custody under a warrant of commitment
issued in pursuance of a conviction made by , Esquire, a justice
of the peace (or police magistrate), for (etc.) for that (Insert the charge
as in the conviction or warrant of comviitment) .
And take notice that in support of the said motion there will be read
the petition and affidavit of C. D., and the exhibits therein mentioned, as
well as the return of the said writ of habeas corpus, and, — [if such be the
case], — the writ of certiorari issued in aid thereof.
Dated at this day of A.D. 19 .
Solicitor for the said C. D.
OBDEB OF DISCHARGE ON HABEAS. COBPUS.
In the (Name of Court).
Before the Honourable Mr. Justice , in Chambers (or, if
in Court).
Before the Honourable (Give the names of the Judges present).
(Tuesday) the day of , A.D. 19 .
The King v. C. D.
Upon the application of the said C. D., upon reading the writ of
habeas corpus herein issued on the , and the return made
thereto by , the keeper, [etc.], the writ of certiorari issued in
aid of the said writ of habeas corpus, upon reading the information, convic-
606 CERTIORAEI IN AID — NOTICE OP MOTION.
tion and proceedings returned by . a justice of the peace (or
police magistrate) for (etc.), in compliance with the said writ of certiorari,
upon reading the petition and affidavit of the said C. D., and the exhibits
therein mentioned, and upon hearing counsel for the Crown, and for the
private prosecution, and for the said C. D., it is obdered that the said C.
D. be, and he is hereby discharged from the custody, of the said ,
the keeper of (etc.), as to the commitment made by the said ,
Esquire, a justice of the peace (or the police magistrate), for (etc.), af ore-
said, on the information of , for that ( Set out the charge, as in
the warrant of commitment), in so far as the said C. D. is held under the
said warrant of commitment, and that this order be sufficient authority for
the said keeper (etc.), for the discharge of the said C. D.
Registrar (or clerk).
[Seal of- Court.]
OBOEB FOB CEBTIOEARI IN AID OF HABEAS COBPUS.
In the (Name of Court).
The King v. C. D.
Upon the application of the said C. D., upon reading the affidavit herein
filed of the said C. D., and the exhibits therein mentioned ; and a writ of
haieas corpus having been issued to bring the body of the said C. D. before
a Judge of this Court,
It is obdebed that a writ of certiorari in aid of the said writ of habeas
corpus do issue out of this Court. (Proceed as in form of order for cer-
tiorari, at p. 597, ante.
Where the practice is to apply by notice of motion instead of by peti-
tion, the following form may be used : —
NOTICE OF MOTION FOB WBIT OF HABEAS COBPUS.
In the
The King, on the information of E. F. against A. B.
Take notice that a motion will be made on behalf of the above-named
A. B. before the presiding Judge in Chambers at , on
the day of , A.D. 19 , at ten o'clock in the
forenoon, or so soon thereafter as the motion can be heard, whereon you
are to show cause why a writ of habeas corpus should not issue to the
keeper of the common gaol of the county of (or as the case may
be), directing him to have before a Judge of the , the body of
the said A. B., a prisoner detained in his custody, that the Court may
cause to be done thereupon what of right and according to law the Court
shall see fit to be done, and for a writ of certiorari in aid thereof, for the
following among other reasons :
I — (State the 'reasons and grounds of application).
And take notice that in support of such application will be read the
affidavits of filed, and the exhibits therein referred to.
Dated at this day of A.D. 19 .
To the Attorney-General for the
Province of and to
the prosecutor, and to
the convicting magistrate
(or justice).
Solicitors for the
said A. B.
TAKING EVIDENCE UNDER COMMISSION AFFIDAVIT. 60?
And the following form of affidavit may be used in support of the
notice of motion : —
In the
The King against A. B.
I, A. B., of the of in the county of
(occupation), make oath and say: —
1, I am the above named defendant.
2 That the paper writing shewn to me marked exhibit " A " to this
my affidavit is a true copy of the warrant of commitment produced to me
by the gaoler of the common gaol of the county of , as that
under which I am now held in close custody in said gaol.
3. That I am not held as a prisoner in the said gaol under any other
warrant.
Sworn, etc.
TAKING EVIDENCE UNDER COMMISSION. SECS. 995-997 OF
THE CODE.
AFFIDAVIT FOR COMMISSION TO EXAMINE WITNESS WHO IS
DANGEBOUSLY ILL. SEC. 995 OF THE CODE.
In the Court of (Style of cause).
In the matter of an information laid by against
before , Esquire, a justice of the peace in and for the county
of , for an indictable offence, to wit: for that (state the
charge) .
I, , of the of in the county of
, (occupation), make oath and say:
1. I am the informant above-named.
2. On the day of , A.D. 19 , I duly laid an
information against the above-named , for the indictable offence
above mentioned, and the proceedings thereon are now pending before the
said justice.
3. That , of the of in the county of
, is a material and necessary witness, and is able to give material
information relating to the said offence, and he, the said , is,
as he has informed me in an interview which I had with him on the
day of instant, willing to give such information, which is (here
state in a general way the evidence which the witness is able to give so as
to shew its materiality) .
4. That the said , according to the opinion of ,
of , a duly licensed medical practitioner, which is now shewn to
me marked exhibit " A," to this my affidavit, and which wag given to me
by the said on the day of its date, is dangerously ill and not
likely to recover from such illness, and the attendance of the said
to give evidence cannot by reason thereof be procured.
5. That , a justice of the peace residing at , is
a fit and proper person to take the evidence of the said witness.
6. The said is now in actual custody in the common gaol of
the county of , and has been served with the notice now shewn
to me marked " B." (See Code.)
Sworn, etc..
608 ORDER FOR COMMISSION — FORM OF DEPOSITIONS.
OBDEB APPOINTINQ A COMMISSIONER TO EXAMINE A WITNESS
DANQEBOUSLY ILL. SEC. 995 OF THE CODE.
In the High Court of Justice. ^
The Honourable )
Mr. Justice j"
In Chambers. J
Tuesday, the day of A.D. 19 .
In the matter of, etc. (as in the above affidavit).
Upon the application of the above-named , upon reading the
affidavits of , and filed, and it appearing to my
satisfaction that one , a person who is dangerously ill, and who,
in the opinion of a duly licensed medical practitioner, is not likely to
recover from such illness, is able and willing to give material evidence
relating to the indictable offence above mentioned.
1. It is ordered that , of , a justice of the peace
in and for the county of , or, as the case may be), be and he is
hereby appointed a commissioner to take in writing the statement on oath
or affirmation of the said , pursuant to section of the
Criminal Code of Canada, the examination of the said witness to be
viva voce.
2. And it is further ordered and directed that the keeper of the com-
mon gaol for the county of , in whose custody the above-
named now is, do convey the said to the ,
in the of , on the day of ,
A.D. 19 , at o'clock in the noon, being the place mentioned
in the notice served on the said C. D. of an intention to take the said state-
ment, for the purpose of being present at the taking of the said statement.
FOBM OF DEPOSITIONS TAKEN ON COMMISSION. SEC. 995.
(To be attached and returned with the commission).
The depositions of , of the
of in the county of
(occupation) ,
Canada
Province of
County of
Taken on oath (or affirmation) before the undersigned , the
commissioner named in the commission hereto annexed, at the
of , in the county of , on this day of ,
A.D. 19 , under the said commission, in the presence and hearing of
, named in the said commission (or after notice to the said
), and of (the prosecutor), also named therein (or after
notice to him).
The said deponent, , upon his oath (or affirmation), says
as follows: —
(Here insert the ioitness's statement in the words used by him as nearly
as possible, and at its conclusion have the same signed at the foot by the
witness and also by the commissioner) .
The depositions of the above named , written on the several
sheets of paper, to the last of which my signature is subscribed, were
taken in the presence and hearing of the above-named and ,
and signed by the said in their presence, and I further certify
that the solicitor or counsel for the said ( or , naming
the prosecutor or defendant as the case may be against whom the evidence
is to be used) had (or might or would have had if he had chosen to be
present, as the case may be) full opportunity of cross-examining (and did
cross-examine if it be the case) the said witness, , upon his said
examination before me under the said commission.
Dated at this day of A.D. 19 .
Commissioner.
Note. — ^A notice should be served upon the opposite party, giving the
time and place where the examination is to take place.
COMMISSION TO TAKE EVIDENCE OUT OF CANADA. 609
NOTICE OF MOTION FOB COMMISSION TO TAKE EVIDENCE OtTT
OF CANADA. SEC. 997 OF THE CODE.
In the Court of
(Style of cause).
Take notice that an application on behalf of the above named {or as
the case may be) will be made to the Honourable the presiding Judge in
ChambeiTs, of the Court of at the Court
House in the of , on , the day
of , A.D. 19 , at ten o'clock in the forenoon, or so soon
thereafter as the application can be made, for an order appointing a com-
missioner to take the evidence viva voce, upon oath or affirmation, of ,
a witness who resides out of Canada, and is able to give material informa-
tion relating to the charge of an indictable offence, for which a prosecu-
tion is now pending upon the information of the above-named ,
against the above-named , for that {state the charge). And take
notice that the name and address of the commissioner proposed to be so
appointed is , of the of , in the State of
, one of the United States of America {or as the case may be,
adding the person's occupation). And further take notice that upon such
application will be read the affidavit of the said , this day filed,
and the exhibits therein referred to.
Dated at this day of A.D. 19 j
To
The above-named ( or ), and to Solicitor for the
his Solicitor. said
AFFIDAVIT FOB COMMISSION TO TAKE EVIDENCE OUT OF CANADA. SEC. 997.
(Style of cause).
I, , make oath and say :
1. I am the above-named informant in this matter.
2. On or about the day of , A.D. 19 , I duly
laid an information against the above-named , before ,
Esquire, a justice of the peace in and for the county of , for an
indictable offence, namely, that (set out the charge).
3. The prosecution of the said , for the said ofEence is now
pending before the said justice of the peace.
4. That , a person who resides at , out of Canada, and
is not now in Canada, is, as I am informed and verily believe, able to give
material information relating to the said offence, such information being
that (state in a general way the evidence the witness will give, so as to
satisfy the Court that it is material).
5. That , of (residence and occupation), is, as I am informed and
believe, a fit and proper person to be appointed a commissioner to take the
evidence of the said
SwoBN, etc. r
OBDEB APPOINTING COMMISSIONEB TO TAKE EVIDENCE OUT OF CANADA.
(Section 997).
(Style of cause).
Upon the application of the above-named , and upon reading the
affidavit of filed, and upon hearing both parties by their solicitors
or counsel, and it appearing that , who resides out of Canada, is able
to give material information relating to an indictable offence for which a
prosecution is now pending in this matter;
1. It is ordered that of (residence and occupation) be and he is
hereby appointed a commissioner to take the evidence viva voce upon oath
c.c.p. — 39
610 STATING A CASE UNDER SECTIONS 761-764.
or affirmation of the said , at aforesaid, and that a com-
mission do issue for that purpose under the seal of this Court directed to
the said commissioner.
2. That days' previous notice of the mail or other conveyance,
by which the said commission is to be sent out, shall be given by the said
to the said , or to his solicitor.
STATING A CASE UNDER SECTIONS 761-764 OF THE CODE.
FORM OF CKBTIFICATE OF BEFUSAL TO STATE A CASE UN DEB SECTION 763.
I, , a justice of the peace in and for the county of ,
do certify at the request of , who was on the day
of , A.D. 19 , summarily convicted before me on the informa-
tion of for (state the charge) that after the said conviction was
made, namely, on the day of , A.D. 19 , the
said desiring to question the said conviction on the ground that
it is erroneous in point of law in that (state the ground of ohjection), or
that the same is in excess of my jurisdiction as such justice (or as the case
may he), applied to me as such justice to state and sign a case setting forth
the facts of the ease and the ground on which the said conviction is ques-
tioned. And I further certify that the said application being in my opinion
merely frivolous (or if the question raised is one of fact and not upon a
point of law or jurisdiction so state). I did thereupon refuse to state a
case thereon ; and this certificate thereof is signed and delivered by me to
the said at his request pursuant to section 763 of the Criminal
Code of Canada.
Given under my hand at the of in the county
• of this day of , A.D. 19 .
Justice of the peace.
AFFIDAVIT UPON APPLICATION FOR RULE TO COMPEL A JUSTICE TO STATE A
CASE UNDER SECTION 764.
In the (title of court.)
In the matter of The King on the information of against
I, of the of , in the county of ,
make oath and say :
1. That I am the above named defendant
2. That on the day of . A.D. 19 , I was
served with a summons (or arrested on a warrant) herein, a true copy of
which is now shewn to me, marked exhibit A, and issued upon an informa-
tion, a true copy of which is now shewn to me marked exhibit
3. On the day of , A.D. 19 , I appeared
before , Esquire, the justice of the peace named in the said
proceedings, to answer to the charge therein mentioned, and the said justice
thereupon proceeded to hear and determine the said charge in presence of
the said informant A. and myself, and upon hearing the evidence the justice
convicted me of the said charge.
4. That the paper writing now shewn to me marked exhibit is a true
copy of the evidence upon the said hearing as taken down by the said justice.
5. That upon the said hearing I took the objection before the said
justice that the said conviction was erroneous in point of law (or was in
excess of his jurisdiction) upon the grounds following (here state the ques-
tions of law or jurisdiction raised.)
6. That I thereupon applied to the said justice to state a case for the
opinion of this court upon the said questions so raised, but he refused to do
so upon the ground that the same were merely frivolous, and a certificate
of such refusal was then granted by the said justice, which certificate is
now shewn to me marked exhibit
7. (State any further facts which the circumstances require.)
RULES NISI AND ABSOLUTE TO STATE A CASE. 611
RULE NISI TO COMPEL A JUSTICE TO STATE A CASE XXNDEE SECTION 764.
In the Court of
The Honourable Mr. Justice | ''"aD^ID ^*^ ^^
In the matter of the King upon the information of against
Upon the application of the said , upon reading the certificate
of , one of His Majesty's justices of the peace in and for the
county of , of his refusal to state a case for the opinion of this
court, at the request of the said , touching the question of the
validity of a certain conviction made on the day of ,
A.D. 19 , by the said justice for that (set out the charge) upon the
ground that the same is erroneous in point of- law (or in excess of the said
justice's jurisdiction), upon reading the aflSdavit of the said ,
and upon hearing counsel for the said :
It is ordered that the said and the said , upon
notice to them of^this order to be given to them respectively, shall on
the day of , A.D. 19 , at o'clock in
the forenoon, or so soon thereafter as counsel can be heard before this Court,
at , shew cause why the said , as such justice, should
not be ordered to state and sign a case for the opinion of this Court upon
the following questions :
1. (Set out the points of late on which the conviction is claimed to be
erroneous, or the question as to the justice's jurisdiction.)
On motion of Mr. of counsel for the said
By the court.
RULE ABSOLUTE TO STATE A CASE UNDER SECTION 764.
In the Court of
The Honourable Mr. Justice . | ^^^ J^) 19 ^^^ ^^
In the matter of, etc., (as in the above form of rule nisi).
Upon the application of the above named upon reading the
rule nisi issued on the day of , A.D. 19 , the
therein mentioned certificate of , a justice of the peace for the
county of of his refusal to state a case (as in the above form of
rule nisi) upon reading the affidavits of and filed,
and upon hearing counsel for the said , and ,
the convicting justice, respectively (or no one appearing for the said
although duly notified).
1. It is ordered that the said do forthwith state and sign
and transmit to this court, a case for the opinion of this court upon the
following questions :
(1) (Set out the questions to be submitted).
2. And it is further ordered that the costs of and incidental to this
application be paid by the said to the said forth-
with after taxation thereof.
On motion of Mr. counsel for the said
By the court.
FORM OF CASE STATED.
(Section 761.)
In the Court of
In the matter of the King upon the information of (Respondent)
and (Appellant).
613 FORM OF STATED CASE — RECOGNIZANCE ON.
Case stated by , one of His Majesty's Justices of the Peace
in and for the county of under the provisions of section 761 of
the Criminal Code of Canada.
1. On the day of A.D. 19 , an information
was laid, under oath, before me by the above named , for that
the said on at (state the offence).
2. On the day of , A.D. 19 , the said charge
was duly beard before me in the presence of both parties, and, after hearing
the evidence adduced and the statements of the said and
and their solicitors (or counsel) I found the said guilty of the
said offence and convicted him thereof, but at the request of the solicitor
(or counsel) for the said I state the following case for the
opinion of this Honourable Court : —
It was shewn before me that ( here set out the findings of fact under
which the point of law arises).
The solicitor (or counsel) for the said desires to question
the validity of the said conviction on the ground that it is erroneous in
point of law (or is in excess of jurisdiction) the questions submitted for the
judgment of this Honourable Court being: (here state the questions sub-
mitted, as for instance) .
1. Whether (here state points of law in question for the opinion of the
Court).
FORM OF BECOQNIZANCE ON CASE STATED.
(Sec. 762)
Canada, \
Province of ,
County of
Be it remembered that on the day of , A.D.
19 , of the of in the county of
(occupation), of the same place (occupation) and
of the same place (occupation) personally came before me, the undersigned,
one of His Majesty's Justiecs of the Peace, in and for the said county
of and severally acknowledged themselves to owe to our Sovereign
Lord the King the several sums following, that is to say ; The said
the sum of dollars, and the said and the
sum of dollars each of lawful money of Canada to be made and
levied of their goods and chattels, lands and tenements respectively, to the
use of our said Lord the King, his heirs and successors, if he, the said
, fails in the condition hereunder written.
Taken and acknowledged the day and year first above mentioned at
the of in the county of before me,
[seal.]
Justice of the Peace, in and for the
County of
Whereas the above bounden was on the day
of A.D. 19 , convicted before , a justice of the
peace in and for the said county of for that the said
(state the charge) and afterwards on the day of ,
A.D. 19 , the said desiring to question the said conviction
on the ground that it is erroneous in point of law (or is in excess of juris-
diction) applied to the said as such justice to state and sign a
case for the opinion of (name the court).
The condition of the above written bond or obligation is such that if
the said shall prosecute his appeal without delay and submit to
the judgment of the said Court of and pay such costs
as shall be awarded by the same ; and further, if the said shall
appear before the said the same justice by whom he was con-
victed as aforesaid or such other justice as is then sitting, within ten days
after the judgment of the said court has been given, to abide such judgment,
unless the judgment appealed against is reversed, then the recognizance to
be void, otherwise to stand in full force and virtue.
Taken and acknowledged before me J.P.
APPLICATIO:Jf FOR AEREST OF PERSON" OUT ON BAIL, 613
FOBK OF ORDEB ON HEARING OF STATED CASE.
(Sec. 765)
In the Court of . ) „,,. t^. . , ,. ,
Before the Hon. Mr. Justice I ^^^ *^»°^: "Po? information of
In Chambers. appellant hereunder.
Upon the application of the above named , upon reading the
Case stated by , Esquire, a JusticQ of the Peace for the county
of in this matter touching the question of the validity of a cer-
tain conviction of the said made by the said Justice of the
Peace on the day of , A.D. 19 , for that {set out
the charge) upon the grounds that the same is erroneous in point of law
(or in excess of jurisdiction or as the case may be) and submitting the
following questions for the opinion of this Court thereon, namely :
1. {Set out the questions submitted.)
and respectively {or no one appearing for the said
although duly notified).
It is ordered that the said conviction be and the same is hereby aflSrmed
(or quashed, as the case may he).
2. And it is further ordered that the costs of and incidental to this
application be paid by the said to the said forthwith
after taxation thereof.
APPLICATION FOE APPREHENSION OF PERSON BAILED AND ABOUT TO ABSCOND
UNDEB SECTION 703 OF THE CODE.
Form of Information.
Canada,
Province of ,
County of
The information of of the of in the
county of (occupation), taken this day of ,
A.D. 19 , before the undersigned , one of His Majesty's
Justices of the Peace in and for the county of who saith that
they, the said and , were on the _ day
of now past, severally and respectiveljr bound by recognizance
before , Esquire, one of His Majesty's justices of the peace for
the said (county) of , in the sum of each, upon
condition that one , of, etc., should appear at the next term of
the Court of , for the district of , (or Court of Oyer
and Terminer and general gaol delivery, or Court of General Sessions of the
Peace), to be holden in and for the (county) of , and there
surrender himself into the custody of the keeper of the (common gaol)
there, and plead to such indictment as might be found against him by the
grand jury for or in respect to the charge of (stating the charge shortly),
and take his trial upon the same and not depart the said Court without
leave ; and that these complainants have reason to suspect and believe and
do verily suspect and believe, that the said is about to depart
from this part of the country (here state reasons for belief), and therefore
they pray of me the said justice that I would issue my warrant of appre-
hension of the said , in order that he may be surrendered to
prison in discharge of them his said bail.
Taken before me, , Justice of the Peace.
614 WAEEANT AND COMMITMENT — ^ABSCONDING DEFENDANT.
WABRANT TO APPBEHEND THK PEBSOX CHABGED UNDER SECTION 703 OF THE
CODE.
To all or any of the constables and other peace officers in the district
{or county, united counties, or as the case may be), of ,
and to and , severally and respectively.
Canada, )
Province of ,1
County of . J
Whereas you the said and ^ , have this day
made complaint to me, the undersigned, one of His Majesty's justices of the
peace in and for the said (county) of , that you the said
and , were, etc., {as in the complaint, to the end) : These are
therefore to authorize you the said and , and also to
command you the said {constable or other peace officer), in His Majesty's
name forthwith to apprehend the said , and to bring him before
me or some justice or justices of the peace in and for the said (count}/},
to the intent that he may be committed to the {common gaol) in and for
the said (county), until the next Court of Order and Terminer and general
gaol delivery {or Court of General Quarter Sessions of the Peace), to be
holden in and for the said {county) of or, etc., as the case may
be), unless he find new and sufficient sureties to become bound for him in
such recognizance as aforesaid.
Given under my hand and seal, this day of , in
the year of our Lord , at , in the (county) aforesaid.
[seal.]
commitment of the pebsox chabqed on subbendeb of his bail afteb
apprehension undeb a wabrant. sections 703-704.
To all or any of the constables, or other peace officers in the district (or
county, united counties, or as the case may be) of , and
to the keeper of the common gaol of the district (or county, united
counties, or, as the case may be) at , in the said, district
(or county, etc.), of : ■
Canada,
Province of ,
County of
Whereas on the day of instant, complaint was
made to me the undersigned, one of His Majesty's justices of
the peace, in and for the said (county) of , by
and , of, etc., that (as in the complaint, to the end), I (or the
said justice) thereupon issued my warrant authorizing the said
and , and also commanding the said constables of
and aU other peace officers in the said (county) of , in His
Majesty's name forthwith to apprehend the said
And whereas the said has been apprehended under the said
warrant, and is now brought before me, the undersigned, one of His
Majesty's justices of the peace in and for the said county of , and
it thereupon appearing to my satisfaction, upon hearing the evidence then
adduced in the presence of the said , that the ends of justice
would otherwise be defeated ;
These are therefore to command you, the said constables or peace
officers in His Majesty's name, forthwith to take and safely convey the
said to the said common gaol at , in the said county
of , and there deliver him to the keeper thereof ; and I hereby
command you, the said keeper, to receive the said into your
custody in the said common gaol, and him there safely to keep until his
trial, or until he produces another sufficient sufety or sureties in this behalf.
Given under my hand and seal, this day of A. D. 19 .
SUBPCENA FOR WITNESS IN ANOTHER PROVINCE. 615
APPLICATION FOB SUBPtENA FOR WITNESS IN CANADA, BUT OUT OF THE
PROVINCE. UNDER SECTION 676 OF THE CODE.
Affidavit for Suhpwna to Witness out of the Province. Section 676 of
the Code.
In the Court of
In the matter of an information laid by against
before , Esquire, a justice of the peace in and for the county
of , for that {state offence as charged).
I, , of, etc., make oath and say :
1. I am the above named informant,
2. That on the day of , A.D. 19 , I duly laid
an information before the above named justice of the peace, a true copy of
which information is now shewn to me, marked exhibit " A."
3. That the said justice of the peace thereupon issued his warraht for
the apprehension of the said , who has been arrested and is now
in custody (or on bail, or as the case may be) upon the said charge, and the
said justice has appointed the day of , A.D. 19 ,
for the holding of the preliminary inquiry upon the same, and the prosecu-
tion of the said upon the said charge is now pending before the
said justice.
4. That one, , is, as I am informed and believe, likely to give
material evidence for the prosecution respecting the said charge, the nature
of such evidence being, as I am informed and believe, that (state in general
terms the nature of the evidence so as to satisfy the judge or court that the
proposed witness is likely to give material evidence).
5. I am informed and believe that the said has in his posses-
sion or control certain documents relating to the matter in question, namely,
{state what documents are desired to he produced).
6. That the said resides at , in the Province
of , within the Dominion of Canada, and is out of the Province
of , and I desire that a subpoena should issue requiring the
said to appear before the said justice, at the said time and place,
to give evidence respecting the said charge, and to bring with him any docu-
ments in his possession or control relating thereto, and particularly the
documents above mentioned.
Sworn, etc.
ORDER FOB SUBPCENA TO WITNESS OUT OF THE PROVINCE. SECTION 676 OF
THE CODE.
In the Court of 'j day the
The Honourable I day of
Mr. Justice f A.D. 19 .
In Chambers. J
In the matter of, etc.
Upon the application of , the informant above named, and it
appearing that one, , residing at the of ,
in the Province of , out of this Province, and not being in this
Province, is likely to give material evidence for the prosecution in the above
matter now pending before the said justice, and that he is alleged to have
in his possession or control certain documents relating to the said charge,
and particularly the following {here state documents of which production is
required) .
It is ordered that a writ of subpoena do issue out of this court, under
its seal, requiring the said to appear before , Esquire,
justice Of the peace, at in the of in the county
of and province of on the day of
, A.D. 19 , to give evidence respecting the said charge, and
to bring with him and produce at the said time and place, any and all
documents in his possession, custody or control, relating to the said charge,
and particularly the documents above specially mentioned.
616 AFFIDAVIT OF SERVICE OF SUBPCENA — DISTRESS.
AFFIDAVIT OF SEEVICE OF SUBP(ENA OUT OF THE PBOVINGE. SECTION 676 OF
THE CODE.
In the Court of
In the matter of, etc.
I, , of the of in the county of ,
in the Province of , make oath and say, as follows:
1. That I did on the day of , A.D. 19 . per-
sonally serve with the subpoena hereto annexed marked " A," by
delivering to and leaving with him the said , a true copy thereof
^t the of , aforesaid. •
2. That at the time of such service as aforesaid, I produced and
exhibited to the said , the original subpoena hereto annexed, and
that the said is personally known to me and is the person
named in the said original subpoena.
3. That in order to effect such service I necessarily travelled
miles.
4. That at the time of such service I paid to the said the
witness fees following, that is to say :
Sworn before me at the \ A Justice of the Peace in
Province of " thil [ a°^ ^^r the county of
day of . A.D. 19 . ) in the Province of
Note. — ^The warrant for defaulting witness who has been served with
subpoena may be in form 15 of the Code. See section 677.
PROCEEDINGS TrNDHK WABBANT OF DISTRESS. SECTION 741 OF THE CODE.
For Forms of Warrant of Distress, see Forms 39 or 40 of the Code.
BAHJFF OB constable's INVENTOBT of GOODS SEIZED TJNOEB WABBANT OF
DISTBESS.
An inventory of goods and chattels by me this day seized and distrained
in the of in the county of _ by virtue of
a distress warrant issued by , Esquire, a justice of the peace in
and for the county of , dated the day of ,
A.D. 19 , under a conviction (or order) made by the said as
such justice on the day of , A.D. 19 . That is
to stfy: (specify the articles seized).
Dated this day of , A.D. 19 .
Constable or Bailiff.
APPRAISEMENT.
We, and , having at the request of ,
a constable of the county of , examined the goods and chattols
mentioned in the annexed inventory, do appraise the same at the sum of $ .
Witness our hands this day of , A.D. 19 .
NOTICE OF SALE OF GOODS DISTRAINED. 617
NOTICE OF SALE OF GOODS DISTRAINED.
By virtue of a distress warrant issued by , Esquire, a justice
of the peace in and for the county of , under a conviction (or
order) made by the said justice against , I have distrained of the
goods and chattels of the said , to wit: (describe property).
All of which goods and chattels will be sold by public auction at
on the day of , A.D, 19 , at the hour of
o'clock in the noon.
Dated the day of , A.D. 19 ,
Bailiff or Ck>nstable.
Note. — Warrants of distress are directed to constables or peace oflScers.
Under section 2 of the Code, paragraph (26), a "peace officer" includes a
" bailiff." So a warrant of distress may be directed to a bailiff as well as
to a constable.
COBONEB'S warrant issued under section 667 OF the CODE.
Canada,
Province of ,
County of
To wit.
To all or any of the constables and other peace officers in the said county
of .
Whereas of the of in the county
(occupation), has this day, upon an inquisition taken before
the undersigned, a coroner in and for the said county of been
charged with the manslaughter (or murder) of (or a man or a
woman, or a male or female child unknown) of the of
in. the county of . And whereas the said has not
already been charged with the said offence before a magistrate or justice.
These are therefore to command you in His Majesty's name forthwith to
take the said into custody and convey him (or her) with all
convenient speed before a magistrate or justice in and for the said
of to answer unto the said charge and to be further dealt with
according to law.
Given under my hand and seal this day of , A.D. 19 ,
at the of in the county aforesaid.
[seal.]
Coroner, County of
618 STATEMENTS OF OFFENCES IN INFORMATIONS.
APPENDIX B.
STATEMENTS OF OFFENCES IN NUMERICAL ORDER WITH THE SECTIONS
OF THE CODE-PART II. OF THE CODE.
STATEMENTS OF OFFENOBS jAGAINST PUBLIC ORDER.
TREASON.
(Section 78.)
On at within His Majesty's Dominions, A.,
with divers other false traitors to the jurors unknown, and armed, arrayed
and assembled together in warlike manner, did levy and make war against
our Lord the King, with intent thereby to depose His Majesty from the
style, honour and royal name of the Imperial Crown of the United Kingdom
of Great Britain and Ireland and of his other Dominions.
ASSAULT ON THE KING.
(Section 80.)
A., on at a certain pistol which he the said A.
in his right hand then had and held, wilfully did point, aim and present
at ("at or near to") the person of our Lord the King, with intent thereby
then and there to alarm our said Lord the King.
INCITING TO MUTINY.
(Section 81.)
A., on at for a traitorous and mutinous purpose
did endeavour to seduce one B., he the said B. then being a person serving
in His Majesty's forces on land, from his duty and allegiance to His
Majesty.
RIOT.
(Sections 87 and 88.)
On at A., B., and C, with divers other persons
to the jurors aforesaid unknown, unlawfully, riotously and in a manner
causing reasonable fear of a tumultuous disturbance of the peace, did
assemble together, and being so assembled together did then and there make
a great noise, and thereby began and continued for some time to disturb
the peace tumultuously.
NEGLECT TO SUPPRESS RIOT.
(Section 94.)
On at the city of within the jurisdiction of A.,
then the mayor of and present in the city of there was a riot,
and the said A., then having notice thereof, without any reasonable excuse,
did omit to do his duty as such mayor in suppressing the said riot.
OMITTING TO AID PEACE OFFICER TO SUPPRESS RIOT.
(Section 95.)
On at , there was a riot, and that A., B., and C,
then and there present, being called upon and required by D., a peace
oflBcer in the exercise of his duty in that behalf, to assist in suppressing the
said riot, did, without any reasonable excuse, omit to do so.
STATEMENTS OF OFFEZSTCES FOR INFORMATIONS. 619
RIOTOUS DESTRUCTION OF BUILDINGS.
(Section 96.)
A., on at , with two other persons at least, did
unlawfully, riotously and tumultuously assemble together to the disturb-
ance of the public peace, and with force did unlawfully demolish and pull
down {or begin to demolish, etc.), a certain building ot B.
RIOTOUS DAMAGE TO BUILDINGS.
(Section 97.)
A., on at , with two Other persons at least, did
unlawfully, riotously and tumultuously assemble together to the disturbance
of the public peace, and with force did unlawfully injure and damage cer-
tain machinery (or "a certain building") of B.
AFFRAY.
(Section 100.)
A., B., and CD., on did commit the act of fighting on the
public street (or highway) in the said of (or, did
commit the act of fighting to the alarm of the public in the bar-room of
the hotel known as the Hotel in the said of ,
being a place to which the public then had access (or state any other
public place) and did thereby then and there take part in an affray.
FORCIBLE ENTRY. r '
(Sections 102-103.)
A,, B., C, and D., on at did, in a manner likely
to cause a breach of the peace, (or "in a manner likely to cause reasonable
apprehension of a breach of the peace ")» enter on land (or "into a certain
dwelling-house"), situate and being at and then in the actual
and peaceable possession of E.
CAUSING DANGEROUS EXPLOSIONS.
(Section 111.)
On at , A., by certain explosive substance,
to wit, wilfully did cause an explosion of a nature likely to
endanger life, (or "of a nature likely to cause injury to property").
ATTEMPT TO DESTROY PROPERTY WITH EXPLOSIVES.
(Section 112.)
On at . A. did wilfully place and throw, into
(or near) a certain building, (or ship), to wit, [Describe same], an explo-
sive substance, to wit, [Describe it], with intent to destroy (or damage)
the same (or any machinery, etc.)
MAKING, OR POSSESSING EXPLOSIVES.
(Section 113.)
On at , A., wilfully did make (or "have in his
possession" or "under his control") a certain explosive substance, to wit,
with intent, by means thereof, to endanger life (or
" to cause serious injury to property " or " to enable C. by means thereof,
to endanger life," or "cause serious injury to property.")
OR,
(Section 114.)
On at , A., did make ) or " knowingly have in
his possession" or "under his control") a certain explosive substance, to
G20 STATEMENTS OF OFFENCES FOE INFORMATIONS.
wit, , under such circumstances as to give rise to a reasonable
suspicion that his making [ (or "having possession" or "control of") it
was not for a lawful object, the said circumstances being as follows:
(relate them.) ]
OFFENSIVE WEAPONS.
(Section 115.)
On at , A did carry (or " have in his possession,"
or "custody") a certain offensive weapon, to wit, a sword (or "an air-
gun," or "a dagger," or "a pistol," or "metal knuckles"), for a purpose
dangerous to the public peace.
TWO OR MORE PERSONS CARRYING OFI^ENSIVE WEAPONS.
(Section 116.)
A. B. and C. D., at , on , being together, did
both of them then and there openly carry offensive weapons, to wit,
(state lohat), in a public place, to wit (state where), in such a manner
and under such circumstances as were calculated to create terror and
alarm (state the manner and circumstances).
(Two justices required).
SMUGGLERS CARRYING OFFENSIVE WEAPONS.
(Section 117.)
On at A., did have possession of certain goods
to wit, (describe them) liable to seizure (or "forfeiture") under (men-
tion the Act or law) relating to inland revenue, (or " the customs," or
"trade," or "navigation") knowing them to be so liable, and that he did
then and there and at the same time carry a certain offensive weapon, to
wit, (describe it.)
CARRYING PISTOL OR AIR-GUN.
(Section 118.)
A. B., on , at , did unlawfully have upon his
person a pistol (or air-gun) elsewhere than in his own dwelling-house, shop,
warehouse, counting-house, or premises, to wit, (state where), the said A.
B. not then having a permit in Form 76 of the Criminal Code authorizing
him to have or carry the said
SELLING A PISTOL, ETC., TO A MINOR.
(Section 119.)
A. B., on , at , did unlawfully sell (or give) a
pistol (or " air-gun," or " certain ammunition for a pistol or air-gun ") to
a minor under the age of 16 years, to wit, to (name the minor).
SELLING A PISTOL OR AIR-GUN WITHOUT KEEPING A RECORD.
(Section IIS (e).)
A. B,,_ on , at , did unlawfully sell a pistol
(or "an air-gun") to C. D. without keeping a record of such sale, and the
date thereof, and the name of the said purchaser thereof, and of the name
of the maker of the said pistol (or "air-gun") or of some other mark by
which the said pistol (or "air-gun") might be identified.
STATEMENTS OF OFFENCES FOR INFORMATIONS. 621
HAVING WEAPON ON THE PERSON WHEN ARRESTED.
(Section 120.)
A. B., on , at , having been then and there arrested
on a warrant issued against him by C. D., Esquire, a justice of the peace
in and for the of , for an offence, to wit {state
the offence) ; [or, having been then and there duly arrested while com-
mitting an offence, to wit (state the offence),] did then and there unlaw-
fully have upon his person when so arrested, a pistol (or "an air-gun").
POINTING FIREARM (LOADED OR NOT) AT ANY PERSON.
(Section 122.)
A. B., at , on , did, without lawful excuse, un-
lawfully point at C. D. a firearm {or "an air-gun").
CARRYING, OR HAVING, OR SELLING SHEATH KNIFE, ETC.
(Section 123.)
A. B., at , on , did unlawfully carry about his
person a bowie-knife {or " dagger," or " dirk," or " metal knuckles," or
" skull cracker," or " slung shot," or " other offensive weapon of the charac-
ter," stating what) ; or (did unlawfully and secretly carry about his per-
son an instrument loaded at the end; or did sell, or expose for sale, a
bowie-knife, or any of the weapons above enumerated (naming it) ; or that
A. B., on , at , being then and there masked (or dis-
guised), did unlawfully, and while so masked (or disguised) carry {or
have in his possession) a fire-arm {or "air-gun").
CARRYING SHEATH KNIFE.
(Section 124.)
A. B., at , on , was found in the town (or city)
of carrying about his person a sheath knife, he, the said A. B.
not being thereto required by his lawful trade or calling.
REFUSE TO DELIVER WEAPON TO JUSTICE.
(Section 126.)
A. B., at , on , being then and there attending {or
"on his way to attend") a certain public meeting at {describe it) did
unlawfully decline and refuse to deliver up peaceably and quietly to C. D.,
a justice of the peace for the said of , within whose
jurisdiction the said public meeting was then appointed to be held, upon
demand then and there duly and lawfully made by the said justice of
the peace, a certain offensive weapon, to wit, a pistol {or describe the
weapon), with which he, the said A. B., was then armed {or which he, the
said A. B., then had in his possession).
UNLAWFUL OATH.— ADMINISTERING OR TAKING.
(Section 130.)
A., on , at , did take {or " administer and cause
to be administered to B."), a certain oath and engagement purporting to
bind the said A., {or "B."), not to inform or give evidence against any
associate, confederate or other person of or belonging to a certain unlaw-
ful association or confederacy, to wit, {Describe the unlawful association or
confederacy) . {Add, — in case of a charge for taking the oath, — " he the
said A. not being then compelled to take the said oath and engagement.".
or, — in case of a charge for administering, — " and which said oath and en-
gagement was then and there taken by the said B.")
622 STATEMENTS OF OFFENCES FOE INFORMATIONS.
PIRACY.
(Section 137.)
A., B. and C, on , with force of arms upon the high seas,
to wit, in and on board a certain ship called the Alabama, in a certain
place upon the high seas, distant about ten leagues from Baltimore in the
United States of America, then being, did in and upon certain mariners to
the jurors aforesaid unknown, then and there being, piratically and violently
make an assault and them the said mariners put in bodily fear and danger
of their lives.
POSSESSING WEAPONS NEAR PUBLIC WORKS.
(Section 146.)
A, B., who was, at the time hereinafter mentioned, employed upon or
about a certain public work within the of , being a
place where the statute called an Act respecting the Preservation of the
Peace in the Vicinity of Public Works was then lawfully in force by pro-
damation, did upon (or "after") the day named in the proclamation by
which the said Act was brought into force at the said of
unlawfully keep or have in his possession (or " under his care or control")
within the said of , a certain weapon, to wit, a dirk
(or "describe the weapon"). ♦
CONCEALING ARMS NEAR PUBLIC WORKS.
(Section 147.)
A. B., within the , of , being a place where the
statute known as an Act respecting the Preservation of the Peace in the
Vicinity of Public Works was then lawfully in force did unlawfully and
for the purpose of defeating the lawful enforcement of Part III. of the
Criminal Code of Canada, receive (or "conceal," or "aid in receiving," or
" procure to be received or concealed ") within the said place a certain
weapon, to wit, a dirk (or "describe the weapon") then belonging to {or
"in the custody of") C. D., a person then and there employed on or about
a certain public work (describing it), then being prosecuted at the said
of
PART IV. OF THE CODE.
STATEMENTS OF OFFENCES AGAINST THE ADMINISTRATION
OF LAW AND JUSTICE.
JUDICIAL CORRUPTION.
(Section 156.)
On , at . A., being a judicial officer, to wit. a
7udge of (name of court), did corruptly accept (or "obtain," or "agree
to accept" or "attempt to obtain") for himself (or for ) from
B., the sum of dollars [or a certain office, place or employment.
to wit. (Describe it) ] on account of \CHve particulars of the thing done
or omitted or to he done or omitted by A. in his judicial capacity of a Judge
of .]
CORRUPTION OF A MEMBER OF PARLIAMENT.
(Section 156.)
On . at , A., being a member of Parliament of
Canada (or " of the legislative assembly " or " councU " of ) did
corruptly accept (or "obtain" or "agree to accept" or "attempt to ob-
tain") for himself (or "for ") from B., the sum of
dollars [or "a certain office, place or employment." to wit. (Describe it)'],
on account of [Give particulars of the thing done or omitted, or to be done
or omitted by A., in his capacity of such member of the Parliament of
Canada, or of the legislative assembly or council of .]
STATEMENTS OF OFFENCES FOR INFORMATIONS, 623
OFFICER TAKING BEIBE.
(Section 157.)
On , at , A., being a justice of the peace, (or
"a peace officer"), employed in the capacity of , for the
prosecution (or "detection" or "punishment") of offenders, did corruptly
accept (or "obtain," or "agree to accept" or "attempt to obtain") for
himself (or "for ") from B., the sum of dollars
[or a " certain office, place of employment, to wit, (Describe it) ] with in-
tent to interfere corruptly with the due administration of justice," (or "to
procure or facilitate the commission, by C, of a crime, to wit, the criminal
offence of ," or " to protect from detection or punishment one
C., who had committed, or was intending to commit a crime, to wit, the
criminal offence of ").
FRAtfDS UPON THE QOVEBNMENT.
(Section 158.)
On at , A. did give (or "offer") to B., a
person in the employment of the Government of Canada (or "to C, a
member of the family of B., a person in the employment of the Government
of Canada," or " to D., a person under the control of B., a person in the
employment of the Government of Canada " ) the sum of
dollars (or whatever the particular compensation or consideration may he)
with intent to obtain the assistance or influence of the said B. to promote
the procuring of a certain contract, to wit, (Describe it) with the Govern-
ment of Canada for the performance of the following work, namely,
(or as the case may be).
OR
(Section 158.)
On , at , A. did give (or "offer") to B., a per-
son in the employment of the Government of Canada (or " C., a member of
the family of B., a person in the employment of the Government of Canada.
or D., a person under the control of B., a person in the employment of the
Government of Canada") the sum of dollars (or whatever the
particular compensation or consideration may be) with the intent to obtain
the assistance and influence of the said B. to promote the procuring of the
payment of the price or consideration stipulated in a certain contract, to
wit, (Describe it), with the Government of Canada for the performance of
the following work, namely (or, as the case may be), [or to
promote the payment of any aid or subsidy payable in respect of a certain
contract, (etc.) ]
MUNICIPAL COEBUPTION.
(Section 161.)
On , at , A. did make an offer (or "promise"
or "agreement") to pay (or "give") the sum of dollars (or
whatever the material compensation or consideration may be) to B., a
member of the municipal council of for the purpose of induc-
ing him, the said B., to vote (or "to abstain from voting") at a meeting,
to wit, a meeting of the day of of the said muni-
cipal council of (or at a meeting, to wit, a meeting of the
, day of , of the committee of the said muni-
cipal council of ) in favour of (or "against") a certain
measure (or "motion" or "resolution" or "question") submitted to such
council (or " committee ").
PERJURY.
(Sections lTO-172.)
A. committed perjury with intent to procure the conviction of B. for an
offence punishable with imprisonment for more than seven years, namely,
robbery, by swearing on the trial of B. for the robbery of C. at the Court
of Quarter Sessions for the county of , on the day
of , 18 ; first, that he, A., saw B. at on
the day of ; secondly, that B. asked A. to lend B.
money on a watch belonging to C. ; thirdly, etc.
624 STATEMENTS OP OFFENCES FOR INFORMATIONS.
PERJURY.
(Sections 170-172.)
A. committed perjury on the trial of B. at a Court of Quarter Sessions,
held at on for an assault alleged to have been com-
mitted by the said B. on C, at Toronto, on the day of by
swearing to the effect that the said B. could not have been at Toronto at
the time of the alleged assault, inasmuch as the said A. had seen him at
that time in Port Arthur.
SUBORNATION OP PERJURY.
(Section 174.)
Same a» last form to the end, and then proceed: —
And the jurors aforesaid further present, that before the committing of
the said perjury by the said A., to wit, on the day of ,
at , C., unlawfully, did counsel and procure the said A. to do and
commit the said perjury.
TAKING REWARD FOR HELPING TO RECOVER STOLEN PRO-
PERTY.
(Section 182.)
On , at , A. did unlawfully and corruptly take
and receive dollars as a reward^for and under pretence or on
account of helping to recover a certain piano," (or twenty dollars in money
or a promissory note, or a horse), belonging to and theretofore stolen from
the said B., {or as the ease may 6e), the said A, not having used all due
diligence to bring to trial for such theft the person who committed it.
BREAKING PRISON.
(Section 187.)
On the day of , at , A. being then a
prisoner confined in the common gaol or prison in and for the county of
, on a criminal charge, did unlawfully, by force and violence,
break the said gaol or prison, by then and there cutting and sawing two iron
bars of the said gaol or prison and by also then and there breaking,
cutting and removing a quantity of stone, parcel of the wall of the gaol
or prison aforesaid, with intent thereby, then and there, to set himself, the
said A., at liberty.
PART V. OF THE CODE.
STATEMENTS OF OFFENCES AGAINST RELIGION, MORALS AND
PUBLIC CONVENIENCE.
BLASPHEMOUS LIBEL.
(Section 198.)
On , at , A. did publish a certain blasphemous
indecent and profane libel of and concerning the Holy Scriptures and the
Christian religion, in one part of which said libel there were and are
contained amongst , other things certain blasphemous, indecent and pro-
fane matters and things of and concerning the Holy Scriptures and
the Christian religion, of the tenor following, that is to say [here set out
the libellous passage, and if there he another such passage in another part of
the puhlication introduce it thus: "and in another part whereof there were
and are contained, amongst other things, certain other blasphemous, inde-
cent and profane matters and things, of and concerning the Holy Scrip-
tures and the Christian religion, of the tenor foUowing, that is to say."
etc., etc., and ponclude the count thus] : to the high displeasure of Almighty
God, and to the great scandal and reproach of the Christian religion.
MANNEE OP STATING OFFENCES. 625
OBSTRUCTING OFFICIATING CLERGYMAN.
(Section 199.)
A., on , at , unlawfully did by force {or threats
of force), obstruct or prevent B., a clergyman, from celebrating divine
service in the parish church of the parish of C, [or " in the performance
of his duty in the lawful burial of the dead in the church yard of the
parish church of the parish of C]
STRIKING OR ARRESTING OFFICIATING CLERGYMAN.
(Section 200.)
A., on , at , did arrest B., a clergyman, upon a certain
civil process [or " did strike " or " did offer violence to B., a clergyman,"]
whilst he the said B., as such clergyman, was going to perform divine
service, he the said A., then well knowing that the said B. was a clergy-
man and was going to perform divine service.
DISTURBING A RELIGIOUS MEETING.
(Section 201.)
A., on , at , did wilfully disturb (or " inter-
rupt" or "disquiet"), an assemblage of persons, met for religious worship,
(or for a "moral" or " social " or "benevolent" "purpose"), by profane
discourse (or "rude or indecent behaviour" or "making a noise"), within
the place of such meeting, (or "so near to the place of such meeting as to
disturb the order or solemnity of it").
SODOMY.
(Section 202.)
A., on , at , did assault, and then and there,
unlawfully, wickedly, and against the order of nature have a venereal affair
with and carnally know B., and then and there wickedly and against the
order of nature with the said B., did commit and perpetrate that detestable
and abominable crime of buggery.
BESTIALITY.
(Section 202.)
A., on , at , with a certain mare, ("any
other living creature"), wickedly, and against the order of nature, did have
a venereal affair, and, then and there, unlawfully, wickedly, and against the
order of nature, with the said mare, did commit and perpetrate that
detestable and abominable crime of buggery.
ATTEMPT TO COMMIT SODOMY.
(Section 203.)
A., on , at , did assault B., and then and there
did attempt to wickedly, and against the order of nature, have a venereal
affair with and to carnally know and commit and perpetrate with the
said B. that detestable and abominable crime of buggery.
INCEST.
(Section 204.)
On , at , A and B., then and there being and
knowing themselves to be brother and sister did commit incest (or "did
cohabit" or "have sexual intercourse") with each other.
c.c.p. — 40
626 MANNER OF STATING OFFENCES.
ACT OF GROSS INDECENCY.
(Section 206.)
On , at , A., a male person, in public {or
"in private") did commit an act of gross indecency with B., another
male person.
OR,
(Section 206.)
On .at , A., a male person, was a party to
the commission of (or " did procure the commission of " or " did attempt to
procure the commission of") an act of gross indecency, in public, (or "in
private") by B., also a male person, with C, another male person.
SELLING OR PUBLICLY EXPOSING AN OBSCENE PICTURE, ETC.
(Section 207.)
A., on , at , knowingly and without lawful justi-
fication or excuse, did manufacture ( or " sell " or " expose for sale," or
" expose to public view," or " distribute " or " circulate") a certain obscene
book, (or "picture," or " protograph " or "model"), representing a naked
man or woman in a lewd, indecent and obscene posture (or as the case may
he), and having a tendency to corrupt morals.
SEDUCTION OF GIRL BETWEEN FOURTEEN AND SIXTEEN.
(Section 211.)
On at . A., did seduce [or "did have
illicit connection with "] B., a girl, of previously chaste character, then
being of (or "above") the age of fourteen years and under the age of
sixteen years.
SEDUCTION UNDER PROMISE OF MARRIAGE.
(Section 212.)
On at . A., being then above the age of
twenty-one years did, then and there, under promise of marriage, seduce
and have illicit connection with B., then being an unmarried female of
previously chaste character, and under twenty-one years of age.
SEDUCTION BY GUARDIAN OF WARD.
(Section 213 (a) ).
On at , A., then being the guardian
of B., then and there did seduce (or "did have illicit connection with")
the said B., his ward.
SEDUCTION OF FEMALE EMPLOYEE.
(Section 213 (6).)
On at A., did seduce {or "did have
illicit connection with") B., a woman of previously chaste character, and
then being under the age of twenty-one years, to wit, of the age of
years, and then also being in the employment of the said A. in the said A.'s
factory (or "mill," or "workshop," or "shop," or "store").
PROCURING DEFILEMENT OF A WOMAN UNDER AGE.
(Section 216 (a).)
On at A., did procure (or " did attempt
to procure") B., a girl, (or "woman") then under the ase of twenty-one
years, to wit, of the age of years, and not being a prosti-
tute or of known immoral character, to have unlawful carnal connection
with another person (or "other persons").
MANNER OF STATING OFFENCES, 627
ENTICING A WOMAN UNDER AGE TO PROSTITUTION.
(Section 216 (6).)
On at A., did inveigle, {or "entice"),
B., a girl (or "woman"), then under the age of twenty-one years, to wit,
of the age of years, and not being a prostitute or of known
immoral character, to a house of ill-fame, (or "assignation"), for the
purpose of illicit intercourse (or "prostitution").
PROCURING A WOMAN TO BECOME A PROSTITUTE.
(Seotion 216 (c).)
On at A., did procure (or "attempt to
procure"), B., a woman (or "girl"), to become, within Canada, (or "out
of Canada"), a common prostitute.
PROCURING A WOMAN TO LEAVE CANADA FOR PROSTITUTION
ELSEWHERE.
(Section 216 (d).)
On at A., did procure (or "attempt to
procure"), B., a woman (or "girl"), to leave Canada with intent thait
she should become an inmate of a brothel elsewhere.
PROCURING A WOMAN TO COME TO CANADA FOR
PROSTITUTION.
(Section 216 (e).)
On at A., did procure (or " attempt to
procure"), B., a woman (or "girl"), to come to Canada from abroad with
intent that she should become an inmate of a brothel in Canada.
PROCURING A WOMAN'S DEFILEMENT BY THREATS.
(Section 216 (g).)
On at A., by threats ( or " intimida-
tion") did procure (or "attempt to procure") B., a woman (or "girl")
to have unlawful carnal connection within Canada (or "out of Canada").
PROCURING A WOMAN'S DEFILEMENT BY FAI^E PRETENCES.
(Section 216 (h).)
On at A., by false pretences (or
"false representations"), did procure B., a woman, (or "girl"), not being
a prostitute or of known immoral character, to have unlawful carnal con-
nection within Canada (or "out of Canada").
DEFILING BY MEANS OF DRUGS.
(Section 216 (t).)
On alt A., did apply (or "admin-
ister") to and cause to be taken by B., a woman, (or "girl"), a certain
drug to wit, (or "some intoxicating liquor," or some
other matter or thing, as the case may be), with intent to stupefy (or
"overpower") her the said B., so as thereby to enable the said _A. (or "a
certain man, to wit, C.,") to have unlawful carnal connection with her the
said B.
CONSPIRACY TO INDUCE A WOMAN TO COMMIT ADULTERY OR
FORNICATION.
(Section 218.)
On at A. and B., did conspire, com-
bine, confederate and agree together, by false pretences, to induce C, a
woman, to commit adultery (or "fornication") with D.
628 MANNER OF STATING OFFENCES.
A COMMON NUISANCE ENDANGERING LIFE, Etc.
(Section 222.)
At on , and on and at divers
other days and times, before and since that date, A., unlawfully and
injuriously did and he does yet continue to (set out the partciular act or
omission complained of) and thereby did commit and does continue to com-
mit a common nuisance endangering the lives (or "safety" or "health")
of the public.
A COMMON NUISANCE OCCASIONING PERSONAL INJURY.
(Section 222.)
At on , and on and at divers
other days and times, before and since that date, A., unlawfully and
injuriously did and he does yet continue to (set out the particular act or
omission complained of) and thereby did commit and does continue to com-
mit a common nuisance by which the public were and are obstructed in
the exercise or enjoyment of a right common to all His Majesty's subjects,
to wit, (set out the common right obstructed) and which common nuisance
did at aforesaid on the day of
occasion actual injury to the person of B.
OR.
(Section 222.)
At on , and on and at divers
other days and times, before and since that date, A., unlawfully and
injuriously did and he does yet continue to (set out the particular act or
omission complained of) and thereby did commit and does continue to com-
mit a common nuisance, endangering the property (or "comfort") of the
public and which common nuisance did at aforesaid on
the day of occasion actual injury to:
the person of B.
SELLING THINGS UNFIT FOR FOOD.
(Section 224.)
B. C, on at did unlawfully, knowingly
and wilfully expose for sale (or have in bis possession with intent to sell)
for human food, a certain article to wit (name the article), which he, the
said B. C, then Imew to be unfit for human food by reason of the same
being (state nature of unfitness).
KEEPING A BAWDY-HOUSE.
(Sections 225-228.)
At on , and on and at divers
other days and times since that date, A., and B., the wife of the said A.,
did keep and maintain a disorderly house, to wit, a common bawdy-house,
by keeping and maintaining a certain house (or " room," or " set of rooms,"
etc.), situate and being , for purposes of prostitution.
KEEPING A COMMON GAMING-HOUSE
(Sections 226-228.)
At on , and on and at divers
other days and times since that date, A. (or "A., B. and C"), did keep
and maintain a disorderly house, to wit, a common gaming-house by keeping
and maintaining for gain a certain house (or "room," etc.) situate and
being to which persons did and do resort for the
purpose of playing at games of chance, to wit, (or mixed
games of chance and skill, to wit ,)
MANNER OF STATING OFFENCES. 629
OR,
(Section 228.)
(Commence as above) did keep and maintain a
disorderly house, to wit, a common gaming-house, by keeping {or "using")
for gain, a certain house (or "room," etc.), situate and being
for playing therein at games of chance and mixed games of chance and
skill, and in which a bank was and is kept by one or more of the players
exclusively of the cithers, (or in which, in the games played therein, the
chances are not alike favourable to all the players).
VAGRANCY.
(Sections 238-239.)
(a) A. B., at , on , not having any visible
means of subsistence, was found unlaw'fuUy wandering abroad (or was
found lodging in a barn, or out-house, or in a deserted or unoccupied
building, (or in a cart or waggon) (or as otherwise stated in section 238
(a) ) and did not upon demand give a good account of himself, or not
having any visible means of maintaining himself, lives without employ-
ment), and is thereby a loose, i3re and disorderly person and a vagrant.
OR,
(6) Being able to work and thereby (or by other means, stating them),
to maintain himself and family, wilfully and unlawfully refused or neglected
to do so, and is thereby, etc.
OR,
(c) Unlawfully did openly expose or exfliibit in street (or road or
highway, or public place, to wit, state the place), an indecent exhibition
(see post, " Indecent Exhibitions," stating its nature in general terms), and
is thereby, etc.
OR,
(d) Was unlawfully wandering about and begging (or did unlawfully
go from door to door, or place himself in a street, or highway, or passage,
or public place, to wit, name it, to beg or receive alms), without a certifi-
cate signed within six months, by a priest, or clergyman, or minister of the
gospel, or two justices of the peace, (&e. See the text), and is thereby, etc.
OR,
(e) Did unlawfully loiter on a public street (or road, or highway, or
public place, to wit, describe where), and obstruct passengers by standing
across the footpath (or by using insulting language, to wit, state the
language used, or state any other way by which any passenger, on the loay,
was obstructed), and is thereby, etc.
OR,
(/) Did unlawfully cause a disturbance in (or near a street, or road,
or highway, or public place, describing it), by screaming, or swearing, or
singing, or by being drunk, or by impeding or incommoding peaceful pas-
sengers), and is thereby, etc.
OR,
(g) By discharging fire-arms (or by riotous or disorderly conduct, to
wit, by, describe it), in a steet, or highway, in the said of
wantonly and unlawfully disturbed the peace and quiet of the inmates of
the dwelling-house of C. D., situate near the said street or highway, and
is thereby, etc.
OR,
(h) Did unlawfully tear down or deface a sign (or break a window, or
a door, or a door-plate, or^ the wall of a house, or a road, or a garden,
or destroying a fence, describing the same), and is thereby, etc.
630 MANNBB OF STATING OFFENCES.
OR,
(♦) Being a common prostitute (or night-walker), wandered in the
fields adjacent to the of (or in the public streets, or
highways, or lanes, or places of public meetings, or gathering of people,
stating where), and upon demand being thereupon made of her by C. D., a
peace officer of the said of , she unlawfully did not give a
satisfactory account of herself, and is thereby, etc.
OR,
(/) Was unlawfully a keeper (or inmate) of a disorderly house, to
wit, a common bawdy house (or house of Ul-fame, or house for the resort of
prostitutes, see "Disorderly House"), and is thereby, etc.
OR,
(k) Was unlaw'fully in the habit of frequenting disorderly bouses, or
bawdy houses (or houses of ill-fame, or houses for the resort of prostitute^ ) ,
and upon being required by C D., a peace officer, did not give a satisfactory
account of herself, and is thereby, etc.
OR,
(I) Having no peaceable profession or calling to maintain himself by,
for the most part supports himself by gaming (or by crime, or by the avails
of prostitution), and is thereby, etc.
PART VI. OF THE CODE.
OFFENCES AGAINST THE PERSON AND REPUTATION.
OMISSION OF FATHER TO PROVIDE NECESSARIES FOR CHILD
UNDER SIXTEEN.
(Section 242.)
At on , and on and at divers
other days and times, before and since that date. A., being then and there
the father of B., a child under sixteen years of age, who was then and
there a member of the said A.'s household, and the said A., being, as such
father, under a legal duty and bound by law to provide sufficient food, cloth-
ing and lodging and all other necessaries for the said B., his said child,
did, in disregard of his duty in that behalf, then and there, refuse, neglect
and omit, without lawful excuse, to provide necessaries for the said B., his
said child, by means whereof the life of the said B. has been and is
endangered: (or " the health of the said B., is now and is likely to be per-
manently injured").
OMISSION OF HUSBAND TO PROVIDE NECESSARIES FOR WIFE.
(Section 242.)
(Commence as above) A., the husband of B., being then
and there, as such husband, under a legal duty and bound by law to pro-
vide sufficient food, clothing and lodging and all other necessaries for B., his
said wife, did, in disregard of his duty in that behalf, then and there,
refuse, neglect and omit, without lawful excuse, to provide necessaries for
her the said B. by means whereof the life of the said B. has been and is
endangered, (or, " the health of the said B., is now and is likely to be per-
manently injured " ) .
MANNER OF STATING OFFENCES. 631
OMISSION OF MASTER TO PROVIDE NECESSARIES FOR
SERVANT OR APPRENTICE.
(Section 243.)
(Commence as above) A., being then and there the
master of B., a servant, (or "an apprentice"), under the age of sixiteen
years, and being then and there under contract and legally bound to pro-
vide necessary food, clothing and lodging for the said B., as his said servant,
{or "apprentice"), did in disregard of such contract and of the legal duty
imposed upon him by law, in that behali?, then and there refuse, neglect
and omit, without lawful excuse, to provide necessary food, clothing and
lodging for the said B., by means whereof the life of the said B. has been
and is endangered: (or " the health of the said B, has been and is likely to
be permanently injured " ) .
ABANDONING CHILD UNDER TWO YEARS OF AGE.
(Section 245.)
On at A, unlawfully did abandon and expose
B,, a child then under the age of two years, whereby the life of the said B.
was and is endangered; (or "the health of the said B. has been and is
permanently injured.")
CAUSING BODILY HARM TO SERVANT OR APPRENTICE.
(Section 249.)
On , at , A. being then and there the master
of B., a servant (or "an apprentice"), and being legally liable to provide
for the said B., as his servant (or " apprentice "), then and there unlawfully
did do and cause to be done bodily harm to the said B., whereby the life
of the said B. was and is endangered; (or "the health of the said B. has
been and is likely to be permanently injured").
MURDER.
(Section 250.)
A. murdered B. at on
ATTEMPT TO COMMIT MURDER BY POISONING.
(Section 264 (a).)
At , on , A. did administer (or " cause to be
administered") to B. certam poison (or "a certain destructive thing" to
wit, ) with intent, thereby, then and there, to murder the said B.
(or "with intent thereby then and there to commit murder").
ATTEMPT TO MURDER BY WOUNDING, Etc.
(Section 264 (6).)
_At , on , A. did wound (or "cause grievous
bodily harm ") to B. with intent, thereby, then and there, to murder the said
B. (or "with intent, thereby, then and there, to commit murder").
632 MANNEE OP STATING OFFENCES.
ATTEMPT TO MURDER BY SHOOTING.
(Section 264 (c).)
At , on , A. did, with a certain loaded gun {or
"pistol," or "revolver") shoot (or "attempt to discharge a loaded arm")
at B., with intent, thereby, there and then, to murder the said B. (or
"with intent, thereby, then and there, to commit murder").
ATTEMPT TO MURDER BY DROWNING, Etc.
(Section 264 (d).)
At , on , A. did attempt to drown (or " suffocate."
or "strangle") B., with intent, thereby, then and there, to murder the said
B., (or "with intent, thereby, then and there, to commit murder").
ATTEMPT TO MURDER BY EXPLOSION.
(Section 264 (e).)
At on , A., did by the explosion of a certain
explosive substance, to wit, [deacrihe the explosive], destroy (or " damage")
a certain building situate and being in street, in
aforesaid, with intent, thereby, then and there, to murder B. (or " with
intent, thereby, then and there, to commit murder").
ATTEMPT TO MURDER, BY ANY MEANS.
(Section 264 (h).)
At on , A., by then and there cutting the rope of
a certain hoist (or " breaking the chain of a certain elevator") in a certain
building situate and being in street in aforesaid
(or, otherwise describe the actual deed) did attempt to murder B. (or "to
commit murder " ) .
THREATENING, BY LETTER, TO KILL OR MURDER.
(Section 265.)
At on , A., did send (or "deliver") to (or
"cause to be received by") B., a certain letter (or "writing") threatening
to kill (or "murder") the said B., he the said A. then knowing the con-
tents of the said letter (or "writing").
OR,
(Section 265.)
At on , A., did utter a certain writing, (or
"letter"), threatening to kill (or "murder") B.,he tihe said A. then Imow-
ing the contents of the said writing (or "letter").
CONSPIRACY TO MURDER.
(Section 266.)
At on , A., B., and C, did conspire and agree
together to murder D. (or "to cause D. to be murdered").
COUNSELLING MURDER.
(Section 266.)
At on , A., did unlawfully counsel (or "attempt
to procure") B. to murder C.
MANNER OF STATING OFFENCES, 633
MANSLAUGHTER.
(Section 262.)
A. unlawfully did kill and slay B., at on
OR,
(Section 262.)
At on , A. did slay and kill B., and did thereby
commit manslaughter.
AIDING AND ABETTING SUICIDE.
(Section 269).
At on . and on divers other days before that
date, A. did counsel and procure B. to commit suicide, in consequence of
which counselling and procuring by the said 'A., the said B. then and there
actually did commit suicide.
ATTEMPT TO COMMIT SUICIDE.
(Section 270.)
A., at on , did attempt to commit suicide by
then and there endeavouring to kill himself.
NEGLECT TO OBTAIN ASSISTANCE IN CHILD-BIRTH,
(Section 271.)
At on , A., being then and there with child and
about to be delivered of such child, did, then and there, with intent that her
said child should not live, neglect to provide reasonable assistance in her
delivery, whereby and in consequence of which neglect her said child was and
is permanently injured (or "died during or shortly after birth").
CONCEALMENT OF BIRTH,
(Section 272.)
On at , A. was delivered of a child, and that
subsequently on at aforesaid, the said child being
dead, the said A. (or " B.") did dispose of the dead body of the said child,
by secretly burying it (or state the actual means used), with intent to
conceal the fact that the said A. had been delivered of such child.
WOUNDING WITH INTENT TO MAIM, Etc.
(Section 273.)
On at , A., with intent to maim (or
"disfigure," or "disable" or "do grievous bodily harm to") B,, did wound
(or "cause grievous bodily harm to") the said B.
OR,
(Section 273.)
On at . A., with intent to resist the lawful
apprehension (or "detainer") of him the said A. (or "of B.") did wound
(or "cause grievous bodily harm to") C.
634 MANNEB OP STATING OFFENCES.
OR,
(Section 273.)
On at , A., with intent to resist the lawful
apprehension (or "detainer") of him the said A. (or "of B.") did, with a
certain loaded gun (or "pistol" or "revolver") shoot {or "attempt to
discharge a loaded arm ") at C.
WOUNDING, BODILY HARM.
(Section 274.)
On at , A., unlawfully did wound {or
"inflict grievous bodily harm upon") B.
WOUNDING A PUBLIC OFFICER.
(Section 275.)
At on , A. wilfully did maim (or " wound ")
B., a public oflScer engaged in the execution of his duty (or "a person acting
in aid of C, a public officer engaged in the execution of his duty").
CHOKING OR DISABLING WITH INTENT TO COMMIT AN
INDICTABLE OFFENCE.
(Section 276.)
At on , A., with intent thereby to enable
him the said A. (or "one B.") to rob CJ., did attempt to choke {or "suffo-
cate," or "strangle") the said C
OR,
(Section 276 (a).)
At on , A., with intent thereby to enable
him the said A., (or "one B.") to rob (or "to commit a rape upon") C.,
did attempt to render the said C. insensible (or " unconscious," or " incap-
able of resistance") by gagging (or " garotting," or "sandbagging") or
[mention the actual means ttaed], the said C, in a manner calculated to
choke, (or "suffocate," or "strangle") the said C.
DRUGGING WITH INTENT TO COMMIT AN INDICTABLE
OFFENCE.
(Section 276 (6).)
At on , A., with intent thereby to enable him
the said A. (or "one B.") to rob (or "to commit a rape upon") C, did
unlawfully apply and administer (or " attempt to apply and administer or
"cause to be administered") to (or "cause to be taken by") C, certajn
chloroform (or "laudanum") (or mention the stupefying or over-power-
ing drug, matter or thing used.)
ADMINISTERING POISON AND THEREBY ENDANGERING LIFE.
(Section 277.)
On at , A., unlawfully did administer
(or "cause to be administered") to (or " cause to be taken by") B., certain
poison (or "a certain destructive and noxious thing"), to wit, ,
and did thereby endanger the life of (or "inflict grievous bodily harm
upon ") the said B.
MANNER OF STATING OFFENCES. 635
ADMINISTERING POISON WITH INTENT TO INJURE.
(Section 278.)
On at , A., with intent thereby to injure (or
"aggrieve," or "annoy") B., unlawfully did administer {or "cause to be
administered") to (or "cause to be taken by") the said B., certain poison
(or "s. certain destructive and noxious thing"), to wit, [describe the drug
or other noxious thing, and mention the quantity used.1
CAUSING BODILY INJURY BY EXPLOSION.
(Section 279.)
On at , A., by the explosion of a certain
explosive substance, to wit, , unlawfully did burn (or "maim,"
or "disfigure," or "disable," or "do grievous bodily harm" to) B.
CAUSING EXPLOSION, WITH INTENT TO INJURE.
(Section 280 (a) (»).)
At , on , A., with intent thereby to burn
(or " maim," or " disfigure," or " disable," or " do grievous bodily harm
to") B. (or "any person") unlawfully did cause a certain explosive sub-
stance, to wit, , to explode.
SENDING AN EXPLOSIVE SUBSTANCE WITH INTENT TO
INJURE.
(Section 280 (a) (it).)
At on , A., with intent thereby to burn
(or " maim," or " disfigure," or " disable," or " do grievous bodily harm
to") B., unlawfully did send (or "deliver") to (or "cause to be taken
into the possession of" or "to be received by") the said B., a certain
explosive substance, to wit .
PLACING DESTRUCTTIVE FLUIDS, ETC., WITH INTENT
TO INJURE.
(Section 280 (a) (Hi).)
At on , A., with intent thereby to burn
(or "maim," or "disfigure," or "disable," or "do grievous bodily harm
to") B., unlawfully did put and lay, in a certain place, to wit [describe the
place) a certain corrosive fluid (or "destructive" or "explosive sub-
stance,") to wit [describe the fluid or substance].
THROWING EXPLOSIVE SUBSTANCE WITH INTENT TO INJURE.
(Section 280 (b) .)
At on , A., with intent thereby to do bodily in-
jury to B., unlawfully did cast and throw at and upon a certain building
(ship or vessel) to wit , a certain explosive substance, to wit
[describe the substance used].
SETTING SPRING-GUNS, ETC.
(Section 281.) *
On at , A., did set and place (or " cause to be
set and placed") in a certain [describe where set] a certain spring-gun (or
G36
MANNER OF STATING OFFENCES.
"man-trap"), calculated to destroy haman life (or "inflict grievous bodily
harm "), with intent that the same (or " whereby the same ") might destroy
(or "inflict grievous bodily harm upon") any trespasser, or other person
coming in contact therewith.
INTENTIONALLY ENDANGERING RAILWAY PASSENGERS.
(Section 282 (6).)
On at , A., with intent to injure or endanger the
safety of persons on the Canadian Pacific Railway, unlawfully did an act
calculated to interfere with au engine, a tender, and certain carriages on
the railway on at by (describe with so much detail as is
sufficient to give the accused reasonable information as to the acts or omis-
sions relied on against him, and to identify the transaction.)
OR,
(Section 282 (a) (t).)
On at , A., upon and across a certain railway
there called , a certain piece of wood (or "stone," etc.), unlawfully
did put (or "throw"), with intent thereby to injure or endanger the safety
of persons travelling, (or " being ") upon the said railway.
(Section 282 (a) (it).)
OR,
On at , A., from a certain railway, there
called , a certain rail (or "railway switch," etc.), there being
upon and belonging to such railway, unlawfully did take up (or "remove."
or "displace"), with intent thereby to injure or endanger the safety of
persons travelling (or "being") upon the said railway.
OR,
(Section 282 (a) (Hi).)
On at , A., a certain point (or other
machinery) then being upon and belonging to a certain railway called
, unlawfully did turn (or " move^' or "divert''), with intent
thereby to injure or endanger the safety of persons travelling (or "being")
uponT the said railway.
OR,
(Section 282 (a) (iv).)
On at , A., unlawfully did make (or "show." or
"hide," or "remove"), a certain signal (or "light") upon (or "near to")
a certain railway called , with intent, thereby, to injure or
endanger the safety of persons travelling (or "being") upon the said
railway.
OR,
(Section 282 (6).)
On at , A., a certain piece of wood (or "stone."
etc."), unlawfully did throw (or "cause to fall" or "strike") at (or
"against," or "into," or "upon") a certain engine, (or "tender," or "car-
riage," or " truck"), then being used and in motion upon a certain railway
there called , with intent, thereby, to injure or endanger the
safety of B., then and there being upon the said engine (or "tender" or
" carriage," or " truck " or " engine," etc., of the train of which the said
first mentioned engine, etc., then formed part).
MANNER OF STATING OFFENCES. . 637
NEGLIGENTLY ENDANGERING THE SAFETY OF RAILWAY
PASSENGERS.
(Section 283.)
On at , A., by wUfuUy omitting and
neglecting to do his duty, that is to say, by wUfuIly omitting and neglecting
to (set out the particular act omitted to be done) which it was then the duty
of him the said A. to do, did endanger {or "cause to be endangered") the
safety of persons then conveyed (or "being"), in and upon a certain rail-
way there called .
DOING INJURY BY FURIOUS DRIVING.
(Section 285.)
On at , A., being in charge of a certain
vehide, to wit, a motor vehicle, did then and there by his wanton or fur-
ious driving of (or "racing" with) the said vehicle do (or "cause to be
done") bodily harm to B.
PREVENTING THE SAVING OF A SHIPWRECKED PERSON.
(Section 286.)
On at , A. did prevent and impede
(or "endeavour to prevent and impede") B., a shipwrecked person, in his
endeavour to save his life.
COMMON ASSAULT.
(Section 291.)
On at , A. assaulted (or assaulted and
beat) B.
INDECENT ASSAULT ON A FEMALE.
(Section 292.)
On at , A. indecently did assault B., a female.
INDECENT ASSAULT ON A MALE.
(Section 293.)
On at , A., a male person,
indecently did assault B., another male person.
ASSAULT CAUSING ACTUAL BODILY HARM.
(Section 295.)
On at . A. did make an assault upon and
beat and occasion actual bodily harm to B.
AGGRAVATED ASSAULT.
(Section 296 (a).)
On at A., in and upon
B. did make an assault with intent then and there to commit an indict-
able offence, namely, [describe the indictable offence intended.]
638 MANNER OF STATING OFFENCES. ^
OR,
(Section 296 (6).)
On at , A. did assault B., a public officer
(or "a peace officer") then and there engaged in the execution of his duty.
OR,
(Section 296 (c).)
On at , A. did assault B., with intent
then and there to resist (or "prevent") the lawful apprehension (or
"detainer") of him the said A., (or "one C") for a certain offence, to
wit, [state the offence.']
OR,
(Section 206 (d).)
On at , A. did assault B., who was then and
there, in his quality of a duly appointed bailiff of , engaged in
the lawful execution of a certain process against (or "in the making of a
lawful seizure of") lands (or "goods").
OR,
(Section 296 (e).)
At on , the day whereon a poll for the
election of municipal councillors, for the municipality of was
being proceeded with, A., being then and there within two miles from the
place where such poll was being held, did unlawfully make an assault upon
and beat B.
KIDNAPPING.
(Section 297.)
On at , A., without lawf\il authority, did
kidnap B., with intent to cause the said B. to be secretly confined or
imprisoned in Canada, (or " to be unlawfully sent out of Canada," or " to
be sold or captured as a slave, or in any way held to service"), against
his will.
UNLAWFUL IMPRISONMENT.
(Section 297.)
On , at , A., without lawful authority, forcibly
seized (or "confined" or "imprisoned") B., within Canada.
RAPE.
(Section 298.)
On at , A. did assault B., a woman, who
was not his wife, and did then and there have carnal knowledge of her
without her consent.
ATTEMPT TO COMMIT RAPE.
(Section 3(X).)
On at , A. did assault B.. a woman,
who was not his wife, with intent then and there to have carnal knowledge
of her the said B., without her consent.
CARNALLY KNOWING A GIRL UNDER FOURTEEN.
(Section 301.)
On at , A. did have carnal knowledge of B.,
a girl under the age of fourteen years, not being his wife.
MANNER OF STATING OFFENCES. 639
ATTEMPT TO CARNALLY KNOW A GIRL UNDER FOURTEEN.
(Section 302.)
On at , A. did attempt to have unlawful carnal
knowledge of B., a girl under the age of fourteen years, not being his wife.
ABORTION.
(Section 303.)
On at , A., with intent thereby to
procure the miscarriage of a certain woman to wit, one B., did unlawfully
administer to (or "cause to be taken by") her the said B., a certain drug
(or "a certain noxious thing") to wit [describe the drug or noxious thing
used, and mention the quantity.']
OR,
On at , A., with intent thereby to procure
the miscarriage of a certain woman, to wit, one B., did unlawfully use upon
the person of the said B., a certain instrument to wit [describe the instru-
ment used.]
OR,
(Section 304.)
On at , A., a woman, did, with intent
thereby to procure her own miscarriage, unlawfully administer (or "per-
mit to be administered") to herself a certain drug (or "a certain noxious
thing") to wit [describe the drug or noxious thing, and mention the quan-
tity used.]
(Section 305.)
OR,
On at , A., unlawfully did supply
(or "procure") a certain drug (or "a certain noxious thing") to wit,
[describe and mention the quantity of it] he the said A., then knowing that
the same was intended to be unlawfully used or employed with intent to
procure the miscarriage of a certain woman, to wit, one B.
OR,
(Section 305.)
On at , A., unlawfully did
supply (or "procure") a certain instrument, to wit, [describe the instru-
ment], he the said A., then knowing that the same was intended to be
unlawfully used or employed with intent to procure the miscarriage of a
certain woman, to wit, one B.
OFFENCES AGAINST CONJUGAL RIGHTS.
BIGAMY.
(Section 307.)
On at , A., being already theretofore
married to one B., did marry and go through a form of marriage with
another woman (or "man"), to wit. C. and. to her (or "him") the said
C. was then and there married, the said B., his the said A.'s said first wife
(or her, the said A.'s, said first husband") being still alive.
640 MANNEB OF STATING OFFENCES.
PROCURING A FEIGNED MARRIAGE.
(Section 309.)
At on , A., did procure a feigned and pretended
marriage between himself, the said A., and a certain woman, to wit, B.
OR,
At on , A., did knowingly aid and assist
B,, in procuring a feigned and pretended marriage between him, the said
B., and a certain woman, to wit, C.
POLYGAMY.
(Section 310.)
At on , and on and at divers other
days and times before and since that date, A., a male person, and B., C.
and D., three females, did practice (or "agree and consent to practice")
polygamy together.
OR,
At on , A., male person, and B., C. and
D., three females, did agree to enter into a conjugal union {or " spiritual or
plural marriage," etc.) together, by means of a contract (or "the rites" or
"rules," etc.) "of a certain denomination," {or "sect" or "society" called
Mormons), {or "called," etc).
SOLEMNIZING MARRIAGE WITHOUT AUTHORITY.
(Section 311.)
On at , A., without lawful authority, did
solemnize {or "pretend to solemnize") a marriage between B. and C.
OR,
On at , A., then knowing that B. was not
lawfully authorized to solemnize a marriage between C. and D., did pro-
cure the said B. to solemnize a marriage between the said C. and D.
SOLEMNIZING A MARRIAGE CONTRARY TO LAW.
(Section 312.)
At on , A., a clergyman of ,
having lawful authority to solemnize marriages, did, then and there,
knowingly and wilfully solemnize a marriage between B. and C, in
violation of the laws of the Province of • , in which the said
marriage was so solemnized, to wit, by solemnizing the same without any
previous publication of banns, and without any license in that behalf, or,
[set out the particular violation complained of.]
ABDUCTHON.
(Section 313.)
On at , A., did take away {or "detain")
against her wUl, a certain woman, to wit, B., with intent to marry {or
" carnally know ") the said B.
MANNER OF STATING OFFENCES. 641
OR,
On at , A., did take away (or "detain")
against her will, a certain woman, to wit, B., with intent to cause her,
the said B., to be married to (or " carnally known by ") C.
ABDUCTION OF AN HEIRESS OF ANY AGE.
(Section 314.)
On at , A., from motives of lucre, did
take away (or "detain," or "take away and detain") against her will, a
certain woman, to wit, B., such woman having a certain legal (or "equit-
able) present, (or "future" or "absolute" or "conditional" or "contin-
gent") interest in certain real (or "personal") estate, to wit (describe
the estate or property , [or such woman being a presumptive
heiress or co-heiress or presumptive next of kin to C., who has a legal
(or, etc.). interest in (etc.)], with intent to marry (or "carnally know")
the said B., (or with iritent to cause her, the said B., to be married to,
or "carnally known by") D.
ALLUREMENT OR ABDUCTION OF AN HEIRESS UNDER
TWENTY-ONE.
(Section 314.)
On at , A., with intent to marry (or
"carnally know") a certain woman, to wit, B., then being under the age
of twenty-one years, and having a certain legal (or etc.), interest in (etc.),
[follow the above form as to the woman's quality of heiress], did fraudu-
lently allure (or "take away" or "detain") the said B., out of the
possession and against the will of C, her father, (or "mother," etc.).
ABDUCTION OF A GIRL UNDER SIXTEEN.
(Section 315.)
On at , A. unlawfully did take (or
"cause to be taken") a certain unmarried girl, to wit, B., then under
the age of sixteen years, out of the possession and against the will of C,
her father, (or "mother" or "a person having the lawful care and charge
of her the said B.").
ABDUCTING CHILDREN UNDER FOURTEEN.
(Section 316.)
On at . A. unlawfully did take (or
"entice") away (or "detain,") one B., a child under the age of fourteen
years, to wit, of the age of years, with intent thereby then and
there to deprive C, the father (or "mother," or "guardian," etc.), of th&
said B., of the possession of the said B., (or " with intent thereby, then and
there, to steal a certain article (or "certain articles), to wit, (mention
the article or articles) then being on or about the person of the said B.
OR,
(Section 316.)
On at A., unlawfully did receive (or
"harbour") one B., a child under the age of fourteen years, to wit, of the
age of years, then and there knowing the said B. to have
been then and there, and theretofore, taken (or "enticed") away, with
intent to deprive C, the father (or "mother" or "guardian," etc.) of the-
said B., of the possession of the said B.
EXTORTION BY DEFAMATORY LIBEL.
(Section 332.)
On at , A. did publish (or "threaten tO'
publish," or " offer to abstain from or prevent the publishing of " ) a de-
famatory libel of and concerning B., with intent thereby, then and there,
c.c.P. — 41
642 MANNEB OF STATING OFFENCES.
to induce the said B., {or "one C"), to confer upon, {or "procure for")
the said A., {or "one D.) a certain appointment {or "ofl5ce") of profit
(or "trust"), to wit, [mention the appointment or office in question].
OR,
(Section 332.)
On at , A. did publish {or " threaten
to publish") a defamatory libel of and concerning B., in consequence of
the said A. having been refused money theretofore demanded by him the
said A. of and from the said B. {or "in consequence of the said A. having
been refused a certain appointment, etc., theretofore sought by him the
said A., of or from or at the hands or by the influence of the said B.").
PUBLISHING A LIBEL KNOWING IT TO BE FALSE.
(Section 333.)
On at , A. did publish in a certain
newspaper called the a defamatory libel, on, of and con-
cerning B.. he the said A. well knowing the same to be false, which libel
was contained in the said newspaper in an article therein headed {or
"commencing with") the following words, to wit, [set out the heading, or
the commencing, and, if necessary, the concluding words of the libel or
otherwise give so much detail as is sufficient to furnish the accused with
reasonable information as to the part of the publication to be relied on
against him], and which libel was written in the sense of imputing that
the said B. was [as the case may be], and which libel was published with-
out legal justification or excuse, and was likely to injure and did injure
the reputation of the said B., by exposing him to hatred, {or " contempt,"
or " ridicule ").
PUBLISHING A LIBEL.
(Section 334.)
On at , A., did publish on, and of
and concerning B., a defamatory libel in a certain letter directed to C,
which libel was in the words following that is to say, [set out the part of
the letter complained of as libellous], and which libel was written in the
sense of imputing that the said B. was [as the case may be], and was
designed to insult the said B.
Special Pleadings in Libel Cases.
SPECIAL PLEA.
(Section 331.)
And, without waiver of his plea of not guilty, the said A., for a further
plea in this behalf, says that Our Tvord the King ought not further to
prosecute the said indictment against him because he says it is true that
[and so on, stating facts showing the truth of every matter charged in the
alleged libel] ; and so the said A. says that the said alleged libel is true in
substance and in fact. And the said A., further says that the said alleged
libel was and is matter of public interest and concern and that, before and
at the time of publishing the said alleged libel, it was for the public benefit
that the matters contained therein should be published, to the extent that
the same were published by him the said A., because [set out the facts
showing that the publication was for the public benefit]. And this he the
said A. is ready to verify, etc.
REPLICATION.
And as to the second plea of the said A., the said J. N. {the clerk of
the Crown) who prosecutes for Our said Lord the King in this behalf, says
that Our said Lord the King ought not. by reason of anything in the said
second plea alleged, to be barred or precluded from prosecuting the said in-
dictment against the said A., because the said J. N. says that he denies the
MANNER OF STATING OFFENCES. 643
saul several matters in the said second plea alleged, and says that the same
are not, nor are, nor is any or either of them, true, etc. And this he the
said J. N. prays may be enquired of by the country, etc.
PART VII. OF THE CODE.
STATEMENTS OF OFFENCES AGAINST RIGHTS OF PROPERTY. OFFENCES
CONNECTED WITH TRADE. ETC.
KILLING AN ANIMAL WITH INTENT TO STEAL THE
CARCASE, Etc.
(Section 350.)
■^t on , A. did kill one sheep, belong-
ing to B., with intent to steal the carcase (or "a part of the carcase, to
wit, the inward fat") of the said sheep.
FRAUDULENT CONVERSION BY A PERSON ENTRUSTED WITH
MONEY.
(Section 355.)
A* on , A., — having theretofore I'eceived
from B. the sum of one hundred dollars, on terms requiring him, the said
A., to pay over the same to C, — did fraudulently convert to his own use
and thereby steal the said sum of money.
THEFT BY HOLDER OF POWER OF ATTORNEY.
(Section 356.)
-^t on , A., having been theretofore
entrusted by B. with a power of attorney for the sale of a certain lot of
land and the buildings thereon, to wit, (describe the property), did sell
the same fraudulently, to wit, for a sum of money which was $500 less than
the value thereof under a fraudulent arrangement for the division of the
said surplus value of $500 between the said A. and one C.
OR,
(Section 356.)
At on , A., having been theretofore
entrusted by B. with a power of attorney for the sale of a certain lot of
land and the buildings thereon, to wit, (describe the property), and having
theretofore sold the said land and buildings, did, then and there, fraudu-
lently convert the proceeds of the said sale, to wit, the sum of two thou-
sand dollars, to a purpose other than that for which he was entrusted with
the said power of attorney, by then and there applying and converting the
said money to his own use.
THEFT BY MISAPPROPRIATING MONEY HELD UNDER
DIRECTION.
(Section 357.)
At on , A., having theretofore received
from B. the sum of one hundred dollars, Avith a direction from him the
said B., to the said A., that the said money should be paid to C, did, then
and there, in violation of good faith and contrary to the terms of the said
direction, fraudulently convert to his own use and thereby steal the said
sum of money.
644 MANNEB OF STATING OFFENCES.
THEFT BY A PARTNER.
(Section 352.)
At on , A. stole one car load of coala
of the value of the property of a co-partnership composed
of the said A. and one B.
THEFT BY A CLERK OR SERVANT.
(Section 359.)
At on , A., being then and there a
clerk, (or '"employed for the purpose and in the capacity of a clerk") to
B. his master, {or "employer"), did steal certain money, to the amount
of one hundred dollars, certain goods, to wit, one gold watch and one gold
chain, and a certain valuable security, to wit, one promissory note for the
payment of twenty dollars, of and belonging to {or "in the possession of")
the said B., his master, {or " employer").
THEFT BY A BANK OFFICIAL.
(Section 359 (6).)
At on , A., being then and there a cashier
{or "assistant cashier," or "manager" or "clerk," etc.), of the
bank, {or "savings bank"), did steal certain money to the amount of
five thousand dollars, {or "bonds," or "obligations." etc.), [describe them],
of and belonging to, {or "lodged," or "deposited" in) the said bank, {or
" savings bank ").
THEFT BY GOVERNMENT EMPLOYEE.
(Section 359 (c).)
At on , A., being then and there
employed in the service of His Majesty {or "the Government of Canada,"
or " the Government of the Province of Ontario." or " Quebec," or " the
municipality of "), and being, then and there, by virtue
of his said employment, in possession of certain moneys to the amount of
ten thousand dollars, {or certain valuable securities, to wit"), [describe
them], did unlawfully steal the said moneys, {or " the said valuable
securities.")
GOVERNMENT EMPLOYEES REFUSING TO DELIVER UP
BOOKS, ETC.
(Section 391.)
At on , A., being then and there em-
ployed in the service of His Majesty {or "the Government of Canada," or
" the Government of the Province of Ontario," or " Quebec," or " the muni-
cipality of "), and being then and there entrusted, by
virtue of his employment, with the keeping {or "receipt," or "custody,"
or "management," or "control") of certain monies to the amount of ten
thousand dollars, {or " certain chattels, to wit," describe them], or " certain
valuable securities, to wit," [describe them] or certain books, papers, ac-
counts and documents, to wit") [descrihe them , did refuse {or "fail") to
deliver up the same, to B., who was, then and there, duly authorized to
demand them.
THEFT BY TENANT.
(Section 360.)
At on . A., being then and
there a tenant {or "lodger") of or in a certain house {or "lodging"), to
wit, [describe the premises], did steal a certain chattel, {or "fixture"), to
wit, [describe the chattel or fixture], belonging to B., and let to be used by
him the said A., in or with the said house, {or "lodging").
MANNER OF STATING OFFENCES. 645
THEFT OF A WILL.
(Section 361.)
At on , A. did steal a certain
testamentary instrument, to wit, the last will and testament {or "a codicil
to the last will and testament") of B.
THEFT OF A DOCUMENT OF TITLE.
(Section 362.)
At on , A. did steal a certain
document of title to goods, to wit, one bill of lading, [describe the document
and the goods to which it relates], (or " one dock warrant," or " warehouse
keeper's receipt," etc.), the property of B.
OR,
(Section 362.)
At on , A. did steal a certain
document of title to lands, to wit, one deed, (or "map," or "paper," etc.),
containing evidence of the title, (or "a part of the title") of B. to cer-
tain real property, to wit, [describe the property], belonging to the said B.
(or "in which the said B. has an interest").
THEFT OF JUDICIAL DOCUMENTS, ETC.
(Section 363.)
At on , A. did steal a certain
record (describing it) of and belonging to the Superior Court of Lower
Canada for the district of Montreal in a certain cause, [describe the cause,
matter or proceeding'] then (or "theretofore"), depending in the said
Court.
OR,
(Section 363.)
At on , A. did steal a certain
writ, (or "petition," etc.), forming part of a certain record of and belong-
ing to the Superior Court of Lower Canada, for the district of Montreal,
in a certain cause [describe the cause, matter or proceeding], then (or
"theretofore") depending in the said Court.
STEALING A POST-LETTER BAG.
(Section 364 (a).)
At on , A. did steal one
post-letter bag, the property of the Post-Master General.
STEALING A POST-LETTER FROM A POST-LETTER BAG, ETC.
(Section 364 (b).)
At on , A. did steal one
post-letter, the property of the Post-Master General, from a post-letter bag,
(or "from a post-oflSce" or "from an oflicer employed in the post-office of
Canada ").
STEALING A POST-LETTER WITH MONEY IN IT.
(Section 364 (c).)
At on . A. did steal one
post-letter, the property of the Post-Master General, which post-letter con-
tained a certain chattel, to wit. [describe it], (or "certain money to the
amount of ," or "a certain valuable security, to wit"),
[describe it]>. ~
646 MANNER OF STATING OFFENCES.
STEALING MONEY, ETC., OUT OF A POST-LETTER.
(Section 364 (d).)
At on , A. did steal a certain
chattel, to wit, [detcribe it], {or " certain money to the amount of
" or "a certain valuable security, to wit"), [describe
it}, from and out of a post-letter, the property of the Post-Master General.
STEALING A POST-LETTER, ETC.
(Section 365 (a).)
At on . A. did steal one
post-letter, the property of the Post-Master General.
STEALING CATTLE.
(Section 369.)
At on . A. did steal one
horse, the property of B.
STEALING OYSTERS.
(Section 371.)
At on , A. did steal from a
certain oyster-bed, called , , the property of B., one
hundred oysters.
DREDGING FOR OYSTERS.
(Section 371.)
At on , A., within the limits
of a certain oyster-bed, called , the property of B., and
sufficiently marked out and known as the property of the said B., unlaw-
fully and wilfully did use a certain dredge (or "net" or "instrument." or
"engine"), for the purpose of then and there taking oysters, (or "oyster-
brood").
DRAGGING ON THE GROUND OF AN OYSTER FISHERY.
(Section 371.)
At on , A. unlawfully and
wilfully did drag, with a certain net. (or "instrument" or "engine"),
upon the ground of a certain oyster fishery called . the
property of B., and sufficiently marked out and known as the property of
the said B.
STEALING THINGS FIXED TO BUILDINGS.
(Section 372.)
At on , A. did steal sixty pounds
weight of lead, the property of B.. then being fixed in a certain dwelling-
house belonging to the said B., and situated in aforesaid.
STEALING TREES WORTH $25 OR MORE.
(Section 373.)
At on , A. did steal one
ash tree of the value of twenty-six dollars, the property of B., then growing
in a certain field belonging to the said B., and situated in aforesaid.
STEALING A TREE (WORTH $5). IN A PARK, ETC.
f Section 373).
At on .A. did steal one
apple_ tree, of the value of six dollars, the property of B.. growing in a
certain orchard of the said B., fdtuated at aforesaid.
MANNER OF STATING OFFENCES. 647
STEALING TREES AFTER TWO PREVIOUS CONVICTIONS.
(Section 374.)
At on , A. did steal one
shrub of the value of fifty cents, the property of B., then growing in a
certain plot of land situate and being in aforesaid ; and
the said jurors say that, heretofore, to wit, at on
, (before the committing of the hereinbefore mentioned offence),
the said A. was duly convicted, before C, one of His Majesty's justices of
the peace for the district of of
having at on , [set out the offence forming
the iasis of the first conviction], and was adjudged, for his said offence, to
pay, [etc.], and, in default of payment, [etc.], to be imprisoned, [etc.]. And
the said jurors further say that heretofore, to wit, at on
, (before the committing of the firstly herein-
before mentioned offence, but after the next hereinbefore mentioned con-
viction), the said A. was again duly convicted before D., one of His
Majesty's justices of the peace for the district of of
having at on , [set out the second con-
viction}. And so the jurors aforesaid say that, on the day and year first
aforesaid, the said A. did steal the said shrub of the value of fifty cents,
after having been twice convicted of the offence of stealing a shrub, {or
"tree," [etc.], of the value of at least twenty -five ceents.
STEALING FRUIT, ETC., GROWING IN A GARDEN, ETC., AFTER
A PREVIOUS CONVICTION.
(Section 375.)
At on A. did steal
forty pounds weight of pears, the property of B., then growing in a certain
orchard of the said B.. situated in aforesaid ; And the said
jurors say that, heretofore, to wit. at on
(before the committing of the hereinbefore mentioned^ offence), the
said A. was duly convicted before C, one of His Majesty's justices of the
peace for the district of of having at
on , [set out the offence forming the basis of the first
conviction'], and was adjudged, for his said offence, to pay. [etc], and in
default of payment, [etc.], to be imprisoned, [etc.]. And so the jurors afore-
said say that, on the day and year first aforesaid, A. did steal the said forty
pounds weight of pears, after having been previously convicted of the offence
of stealing fruit in an orchard (or "garden "), [etc.].
STEALING FROM A SHIP.
(Section 386.)
A. stole a sack of flour from a ship called the ,
at on .
STEALING METAL ORE, ETC., FROM A MINE.
(Section 378.)
At on A. did steal
five tons weight of iron ore, (or "coal"), the property of B., from a certain
iron (or "coal") mine of the said B., situated in aforesaid.
STEALING FROM THE PERSON.
(Section 379),
At on A. did steal
one gold watch and one silver watch chain from the person of B.
STEALING IN A DWELLING HOUSE.
(Section 380 (a).)
At on A. did steal
twelve silver spoons, of the total value of twenty-five dollars, of the goods
and chattels of B.. in the dwelling house of the said B., situated in
aforesaid.
648 MANNEK OF STATING OFFENCES.
OR,
(Section 380 (6).)
At on A. did steal
twelve silver forks of the goods and chattels of B., in a dwelling house of
the said B., situated in , aforesaid; there being, then and there,
in the said dwelling house, one C, who was then and there put in bodily
fear by the menaces and threats of the said A.
STEALING BY PICKLOCKS.
(Section 381.)
At on , A., by means of a pick-
lock, (or "false key," etc.), did steal the sum of twenty-five dollars, the
property of B., from a locked and secured receptacle for property.
STEALING IN A SHIP ON A NAVIGABLE RIVER.
(Section 382 (o).)
At on A. did steal
from a certain ship called " Nepigon " twelve bars of iron of the goods and
merchandise of B., then being in the said ship, upon the navigable river
St. Lawrence, (or "in a certain port of discharge, to wit, the port of
Montreal " ) .
STEALING FROM A DOCK.
(Section 382 (6).)
At on , A. did steal,
from a certain dock, {or "wharf"), adjacent to the navigable river St.
Lawrence, one sack of flour of the goods and merchandise of B., then being
upon the said dock.
STEALING WRECK.
(Section 383.)
At on A. did steal
one coil of rope, and one compass, being portions of the tackle oi a certain
ship called the " Hawk," the property of B., and other persons to the jurors
unknown, which ship was then and there lying stranded and wrecked.
OR,
(Section 383.)
At on A. did steal
a gold watch, the property of B., a shipwrecked person belonging to a
certain ship, called the " Highflyer," which then and there lay stranded and
wrecked.
STEALING IN OR FROM RAILWAY STATIONS, ETC.
(Section 384.)
At on A. did steal
one umbrella and one rug of the goods and chattels of B., in (or " from "),
a certain railway station, to wit, a station belonging to the Grand Trunk
Railway Company (or "the Canadian Pacific Railway Company"), and
situated at aforesaid.
STEALING GOODS IN PROCESS OF MANUFACTURE.
(Section 388.)
At on A. did steal
forty yards of calico worth five dollars, belonging to B.. in a certain weav-
ing shed of the said B., situated in aforesaid, whilst the same
were there exposed upon the looms of the said B., during a certain stage,
process or progress of the manufacture thereof.
MANNER OF STATING OFFENCES, 649
FRAUDULENTLY DISPOSING OF THINGS ENTRUSTED FOR
MANUFACTURE.
(Section 389.)
At on , A. did fraudulently dispose
of one hundred yards of tweed cloth, the property of B., which the said A.
had been heretofore entrusted with to manufacture.
CRIMINAL BREACH OF TRUST.
(Section 390.)
At on , A., then being, — under
and by virtue of the will of B., — a trustee of certain property, to wit,
[describe it], for the use and benefit of C, D., E. and F., did with intent
to defraud, and in violation of his trust, convert the same to a use not
authorized by the said trust, to wit .
FRAUD BY OFFICIAL.
(Section 413.)
At on , A., then being a director
(or "manager"), [etc.], of a certain body corporate called
did destroy (or "alter," or "mutilate," or "falsify"), a certain book (or
"paper," or "writing," or "valuable security"), to wit, [describe the
book, etc.], belonging to the said body corporate, with intent to defraud.
OR,
(Section 413.)
At on , A., then being a director
[etc.], of a certain body corporate called did. with intent
to defraud, make (or "concur in making") in a certain book of account
to wit. [describe it], of the said body corporate, a certain false entry, by
then and there falsely entering in such book, [describe the false entry].
DESTROYING DOCUMENT OF TITLE TO GOODS.
(Section 396.)
At on , A., for a fraudulent
purpose, to wit — — did destroy (or "cancel," or "conceal," or
" obliterate ) , a certain document of title to goods, to wit, one bill of
lading, [describe it].
FRAUDULENT CONCEALMENT, ETC.
(Section 397.)
At on , A., for a fraudulent
purpose, to wit did take (or "obtain," or "remove," or "con-
ceal"), one horse and one express wagon, the property of B., of the value
of one hundred dollars.
BRINGING STOLEN PROPERTY INTO CANADA.
(Section 398.)
On at , A. did bring into Canada, to wit,
into the city of Montreal in the province of Quebec, twelve gold watches
and five diamond rings, of the total value of two thousand dollars, there-
tofore stolen by him the said A., outside of Canada, to wit, in the city of
New York in the State of New York, one of the United States of America.
RECEIVING PROPERTY STOLEN, OR OBTAINED BY ANY
INDICDTABLE OFFENCE.
(Section 399.)
At on , A. did receive and
have one piano, belonging to B., and theretofore stolen (or "obtained by
an indictable offence, to wit, by false pretences"), or [describe the offence
by which the piano was obtained], he the said A., then well knowing the
said piano to have been so stolen (or "obtained by the said indictable
offence." )
660 MANNER OF STATING OFFENCES.
OR,
(Section 400.)
At on , A. stole one piano
belonging to B. . And the jurors aforesaid do further
present, that, afterwards, at on
C., the said piano so stolen as aforesaid, did receive and have, he, the said
C, then well knowing the said piano to have been stolen.
OBTAINING BY FALSE PRETENCES.
(Section 405.)
At on , A., by false pre-
tences, did obtain from B. five barrels of flour of the value of
with intent to defraud.
OR,
(Section 405.)
A. obtained by false pretences from B., a horse, a cart and the harness
of a horse at on , with intent to defr.aud.
OBTAINING EXECUTION OF VALUABLE SECURITY BY FALSE
PRETENCES.
(Section 406.)
At on , A., by false pre-
tences, did cause and induce B. to execute (or "make," or "accept," or
"endorse," or "destroy"), a certain valuable security, to wit, a promissory
note for one hundred dollars, with intent thereby then and there to defraud
and injure the said B. -^
PERSONATION.
(Section 408.)
At on , A. did personate B. (or
" the administrator," or " widow," or " next of kin of the late C," or " the
wife of D.") with intent then and there and thereby fraudulently to obtain,
[describe the money or property intended to he obtained^.
PERSONATION AT AN EXAMINATION.
(Section 409.)
At on , A., falsely and with
intent to gain an advantage for himself, (or " one B."), did personate C, a
candidate at a competitive {or "qualifying") examination held under
authority of law, to wit ■ {or "in connection with the McGiU
College University, of Montreal.")
PERSONATING AN OWNER OF STOCK.
(Section 410.)
At on , A. falsely and deceitfully
did personate B., the owner of a certain share and interest in certain stock,
[annuity or public fund], to wit, [give the amount and description of the
said stock, etc.], then transferable at the
bank, and did, thereby, and by means of such personation, then and there
transfer {or "endeavour to transfer"), the said share and interest of the
said B., in the said stock, [etc.], as if the said A. were the lawful owner
thereof.
ACKNOWLEDGING AN INSTRUMENT IN A FALSE NAME.
(Section 411.)
At on , A. did, before the Court of
King's Bench for the Province of Quebec, sitting in and for the district of
Montreal, (or "the Honourable Mr. Justice .... "), [etc.], without lawful
authority or excuse, acknowledge in the name of B. a certain reoogniz^ance
of bail, {or "cognovit actionem"), [etc.], to wit. [describe the instrument
and the cause, action, or proceeding to which it relatesl.
MANNER OF STATING OFFENCES, 651
OBTAINING PASSAGE BY FALSE TICKET.
(Section 412.)
At on , A., fraudulently,
unlawfully, and by means of a false ticket, {or "order"), did obtain (or
"attempt to obtain") a passage on a carriage or car of the Montreal
Street Railway Company.
FALSE STATEMENT BY A PROMOTER, DIRECTOR, PUBLIC
OFFICER OR MANAGER OF A PUBLIC COMPANY.
(Section 414.)
At on , A., being then a promoter {or
"director," or "public officer," or "manager"), of a certain body corporate
{or "public company") then intended to be formed and to be called
, {or "then actually existing and called "), did
make, circulate, and publish {or " concur in making, circulating, and pub-
lishing) a certain prospectus {or "account" or "statement"), well knowing
the same to be false in certain material particulars, to wit, [state them],
with intent to induce certain persons, to the jurors aforesaid unknown, to
become shareholders or partners {or "with intent to deceive and defraud
the members, shareholders and creditors"), of the said body corporate {or
" public company ") .
FALSE ACCOUNTING BY CLERK.
(Section 415.)
At on , A., then being a clerk in the employ of
B., did, with intent to defraud, destroy {or "alter," or " mutUate," or
"falsify") a certain book {or "paper," or "writing," or "valuable se-
curity"), to wit, [describe the booTc, etc.], belonging to {or "in the pos-
session of," or " received by the said A., for and on behalf of") the said B,
FRAUDULENT ASSIGNMENT BY A DEBTOR.
(Section 417 (a) (i).)
At on , A., with intent to defraud his creditors,
did make {or "cause to be made") a gift, {or "conveyance," or "assign-
ment," or " sale," or " transfer," or " delivery "), of his property, to B.
OR,
(Section 417 (o) (it).)
At on , A. did remove {or "conceal," or
"dispose of") some of his property, to wit , with intent to de-
fraud his creditors.
FRAUDULENTLY RECEIVING'A DEBTOR'S PROPERTY.
(Section 417 (ft).)
At on , A., with intent that B. should defraud
his creditors, did receive the property of the said B., then and there given
{or " conveyed," or " assigned," or " sold," or " transferred," or " delivered,"
or "removed," or "concealed," or "disposed of") by the said B., with
intent to defraud his creditors.
GIVING A FALSE WAREHOUSE RECEIPT,
(Section 425.)
At on , A., then being the keeper of a ware-
house, [etc.], for storing timber, [etc.] knowingly, wilfully and with intent
to mislead {or "injure," or "defraud") did give to B. a certain writing
purporting to be a receipt for, {or "acknowledgment of"), certain goods,
to wit, [describe them], as having been received into his the said A.'s ware-
house, [etc.], before the said goods had been received by him the said A.,
as aforesaid.
652 MANNER OF STATING OFFENCES.
FALSE RECEIPT FOR GRAIN, ETC.
(Section 427.)
At on , A., in a certain receipt {or "certificate."
or "acknowledgment") for grain (or "timber," etc.), to be used for one
of the purposes of the Bank Act, to wit, for the purpose [mention the
purpose], wilfully did make a false statement, to wit, [set out the statement
and show in what respect it was false.]
UNLAWFULLY APPLYING MARKS TO PUBLIC STORES.
(Section 433.)
At on , A., without lawful authority, did apply,
in and on certain public stores, to wit, fifty yards of canvas, and fifty yards
of fearnought, a certain mark, to wit, a blue line in a serpentine form.
OR,
(Section 433.)
At on , A., without lawful authority, did apply in
and on certain public stores, to wit, fifty yards of bunting, a certain mark,
to wit, a double tape, in the warp of the said bunting.
UNLAWFUL POSSESSION, ETC., OF PUBLIC STORES.
(Section 435.)
At on , A., without lawful authority, did
receive {or "possess," or "keep," or "sell," or "deliver"), certain public
stores, to wit, twenty-five pounds of candles, bearing a certain mark, to wit,
blue threads in each wick, to denote His Majesty's property therein know-
ing them to bear such mark.
RECEIVING REGIMENTAL NECESSARIES.
(Section 438.)
At on , A. did buy from a certain soldier, to
wit, B., certain arms (or "clothing") to wit [describe them], belonging to
His Majesty.
CHEATING AT PLAY, ETC.
(Section 442.)
At on , A., with intent to defraud B., did cheat
in playing at a game with cards (or "dice").
CONSPIRACY TO DEFRAUD.
(Section 444.)
At on , A.. B. and C. did conspire together
to defraud the public (or "D."), by deceit, (or "falsehood," or "by the
fraudulent means following"), to wit, [set out the fraudulent means agreed
upon],
ROBBERY, WITH WOUNDING, ETC.
(Section 446 (a).)
At on , A., with and by means of violence (or
"threats of violence") then and there used by him to and against the
person (or "property") of B., to prevent (or "overcome") resistance,
did violently steal from the person (or " in the presence ") of the said B.,
and against the said B.'s will, one gold watch, of the goods and chattels
of the said B. ; and that at the time (or "immediately before." or "im-
mediately after") he so robbed the said B., as aforesaid, he the said A.,
did wound (or "beat," or "strike." or "use personal violence to") the
said B.
MANNER OF STATING OFFENCES, 653
ROBBERY BY A PERSON ACCOMPANIED BY OTHERS.
(Section 446 (6).)
At on , A., then being together with other
persons to the jurors aforesaid unknown, did with and by means of vio-
lence, (or " threats of violence ") then and there used by him to and against
the person (or "property") of B., to prevent (or "overcome") resistance,
violently steal from the person (or "in the presence") of the said B.,
and against the said B.'s will, moneys of the said B. to the amoun/t ctf
one hundred dollars,
ROBBERY BY A PERSON ARMED WITH AN OFFENSIVE
WEAPON.
(Section 446 (c).)
At on , A., then being armed with a certain
offensive weapon, to wit, a brass knuckle-duster (or "lead-loaded cane," or
"sand-bag," or "pistol," or "kniie"), did, with and by means of violence,
(or "threats of violence"), then and there used by him to and against
the person (or "property") of B., to prevent (or "overcome") resistance,
violently steal from the person (or "in the presence") of the said B., and
against the said B.'s will, one diamond ring of the goods and chattels of
the said B.
ASSAULT BY AN ARMED PERSON, WITH INTENT TO ROB.
(Section 446 (c).)
At on , A., then being armed with a certain
offensive weapon, to wit, a heavy bludgeon, did, in and upon B., make an
assault, with intent the moneys, goods and chattels of the said B. then and
there violently to steal from the person and against the will of the said B.
ROBBERY.
(Section 447.)
At on , A., with and by means of violence (or
"threats of violence") then and there used by him to and against the
person (or "property") of B., to prevent (or "overcome") resistance, did
violently steal from the person (or "in the presence"), of the said B.,
and against the said B.'s will, moneys of him the said B., amounting to
fifty dollars.
ASSAULT WITH INTENT TO ROB.
(Section 448.)
At on , A. assaulted B. with intent the
moneys, goods and chattels of the said B., then and there violently to steal
from the person and against the will of the said B.
STOPPING THE MAIL.
(Section 449.)
At on , A. did stop a certain mail, to wit, The
mail for the conveyance of letters between and
with intent to rob (or "search") the same.
COMPELLING EXECUTION OF A DOCUMENT BY FORCE.
(Section 450.)
At on , A., by means of unlawful violence to
(or "restraint of") the person of B., did unlawfully compel the said B.
to execute (or "sign" or "destroy") a certain deed, to wit, [describe it],
with intent to defraud, (or injure").
654 MANNER OF STATING OFFENCES.
OR,
(Section 450.)
At on , A., by means of a threat that he
would employ unlawful violence to (or "restraint of") the person of B.,
did unlawfully compel the said B. to sign {or " accept," or " endorse," or
"destroy," or "alter") a certain promissory note {or "bill of exchange")
to wit, [describe it], with intent to defraud {or "injure ").
SENDING THREATENING LETTER.
(Section 451.)
At on , A. did send to {or "cause to be
received by") B., a certain letter {or "writing") demanding of the said
B., with menaces, a certain sum of money, to wit, one thousand dollars, the
said demand being without reasonable or probable cause, and he the said
A. then well knowing the contents of the said letter {or "writing"), which
is as follows : [set out the letter.'^
DEMANDING WITH INTENT TO STEAL.
(Section 452.)
At on , A., with menaces, did demand of B.
a certain sum of money, to wit, one hundred dollars, with intent then and
there to steal the same from the said B.
EXTORTION BY THREATS TO ACCUSE OF CERTAIN SERIOUS
CRIMES.
(Section 453 (a) (♦).)
At on , A. did accuse ( or " threaten
to accuse") B., of having committed an offence punishable by law with
death {or "imprisonment for seven years or more") to wit, murder {or
"forgery," or "burglary," or "bigamy"), [etc.], with intent thereby then
and there to extort and gain money from the said B.
OR,
(Section 453 (o) {it).)
At on . A. did accuse (or "threaten
to accuse") B., of having committed an assault with intent to commit a
rape, {or "attempted or endeavoured to commit a rape"), with intent
thereby then and there to extort and gain money from the said B.
OR,
(Section 453 (a) {iv).)
At on , A. did accuse {or " threaten
to accuse") B., of having committed an infamous offence, to wit, the
abominable crime of buggery, with intent thereby then and there to extort
and gain money from the said B.
OR,
(Section 453 (c).)
At on , A., with intent to extort
and gain money from B.. did cause the said B., to receive a certain docu-
ment accusing ( or _" threatening to accuse") the said B., of having coun-
selled and procured one C, to commit an infamous offence, to wit, the
abominable crime of buggery, he the said A. then well knowing the contents
of the said document, which is as follows: [set out the document],
EXTORTION BY THREATS TO ACCUSE OF OTHER CRIMES.
(Section 454.)
At on , A. did accuse {or " threaten
to accuse") B.. of having committed the offence of polygamy {or "libel"
or " aggravated , assault," or "gaming in stocks." or "frequenting bucket
shops," or " corrupting jurors." or " obtaining money by false pretences,"
or "defrauding creditors"), [etc.], with intent, thereby, then and there to
extort and gain money from the said B.
MANNER OF STATING OFFENCES. 655
BREAKING A PLACE OF PUBLIC WORSHIP.
(Section 455.)
At on , A. did break and enter a
certain place of public worship, to wit, [describe the church, chapel, or
other place of public worship] , and there, in the said church, (or "chapel")
[etc.], did steal one silver candlestick of the goods and chattels of
BURGLARY.
(Section 457 (o).)
At on , about the hour of twelve at
night, A., burglariously did break and enter the dwelling-house of B., there
situated, with intent burglariously to steal the goods and chattels of the
said B., then and there being found in the said dwelling-house, {or "with
intent to commit, in the said dwelling-house, an indictable offence, to wit"),
[describe the offence].
OR,
(Section 457 (a).)
At on , about the hour of twelve at
night. A. burglariously did break and enter the dwelling-house of B., there
situated, with intent burglariously to steal the goods and chattels of the
said B., then and there being found in the said dwelling-house; and he the
said A., having so broken and entered and then being in the said dwelling-
house did burglariously steal twelve silver forks and twelve silver spoons
of the value of forty dollars, of the goods and chattels of the said B., in the
said dwelling-house then being found.
OR,
(Section 457 (6).)
At on , A., then being in the dwelling-
house of B., did steal twelve silver forks and twelve silver spoons of the
value of forty dollars of the goods and chattels of the said B. in the said
dwelling-house, and the said A., being so as aforesaid in the said dwelling-
house and having committed the theft aforesaid, did afterwards, to wit, on
the day and year aforesaid, about the hour of twelve at night, burglariously
break out of the said dwelling-house.
HOUSE BREAKING.
(Section 458 (a).)
At on , A. did break and enter by
day the dwelling-house of B., there situated, and, twelve silver forks of the
value of twenty dollars, the property of the said B., then and there being
found therein, did then and there steal.
OR,
(Section 459.)
At on , A. did break and enter by day
the dwelling-house of B., there situated, with intent to commit an indictable
offence therein, to wit, to steal the goods then and there being in the said
dwelling-house.
BREAKING SHOP, ETC.
(Section 460.)
At on , (A. did break and enter the
shop of B., there situated, and five boxes of cigars of the value of twenty
dollars, the property of the said B., then and there being found therein, did
then and there steal.
OR,
(Section 460.)
-A^t on , A. did break and enter a
certain building, there situated, and being within the curtilage of and
occupied with the dwelling-house of B., but not connected with or forming
part of the said dwelling-house either immediately or by means of any
covered or enclosed passage, and one horse of the value of seventy-five dollars,
the property of the said B., then and there being found in the said building,
did then and there steal.
656 MANNEE OP STATING OFFENCES.
OR,
(Section 461.)
At on , A. did break and enter th6
shop of B., there situated, with intent to commit an indictable offence therein,
to wit, to steal the goods and chattels of the said B., then and there being
in the said shop.
OR.
(Section 461.)
At on . A. did break and enter a
certain building there situated and being within the curtilage of and
occupied with the dwelling-house of B., but not connected with or forming
part of the said dwelling-house either immediately or by means of any
covered or enclosed passage, with intent then and there the goods and chat-
tels of the said B., then being in the said building, to steal.
BEING FOUND IN A DWELLING HOUSE BY NIGHT.
(Section 462.)
At on , about the hour of twelve at
night, A. unlawfully did enter {or " was in ") the dwelling-house of B., there
situated, with intent the goods and chattels of the said B. to ^teal.
BEING FOUND ARMED WITH INTENT TO BREAK AND ENTER.
(Section 463 (o).)
At on , A. was found, by day, arm.ed
with a certain dangerous and offensive weapon {or "instrument"), to wit,
[describe if], with intent to break and enter the dwelling-house of B., there
situated, and to commit therein an indictable offence, to wit, to steal the
goods and chattels of the said B. then being in the said dwelling-house.
OR,
(Section 463 (6).)
At on , A. was found, by nisht
armed with a certain dangerous and offensive weapon {or "instrument"),
to wit, [describe it], with intent to break and enter a certain building of
B. there situated, and to commit therein an indictable offence, to wit, to
steal the goods and chattels of the said B. then being in the said building.
HAVING POSSESSION, BY NIGHT, OF HOUSE-BREAKING
INSTRUMENTS.
(Section 464 (o).)
At on , A. was found, about the
hour of twelve at night, without lawful excuse, in possession of certain
house-breaking instruments, to wit, [describe them].
BEING FOUND DISGUISED BY NIGHT.
(Section 464 (c).)
At on , A was found, by night, with-
out lawful excuse, with his face masked {or " blackened ").
BEING FOUND DISGUISED BY DAY, WITH INTENT.
(Section 464 (d).)
At on , A. was found, by day, with-
out lawful excuse, in a certain disguise, to wit [describe the disguise], with
intent then and there to commit an indictable offence, to wit, [mention the
offence].
MANNER OF STATING OFFENCES, 657
FORGERY.
(Section 466.)
At on , A. knowingly did forge a certain
document, to wit, [describe the document by its usual name, or set forth a
copy of it], with the intention that, &c. (See the section).
UTTERING A FORGERY.
(Section 467.)
At on , A., knowing a certain docu-
ment, to wit, [describe it], to be forged, did utter (or "use," or "deal
with," or "act upon," or " attempt to use," etc.,) the said forged document,
as if it were genuine.
FORGING PUBLIC SEALS.
(Section 468 (o).)
At on , A. knowingly did forge a cer-
tain public seal, to wit, the public seal of the Dominion of Canada, which
forged seal purported to be genuine.
UTTERING FORGED SEALS.
(Section 467.)
At on , A., knowing a certain seal, to
wit, a seal purporting to be the public seal of the Dominion of Canada, to
•be forged, did use the said forged seal as if it were genuine.
UNLAWFULLY PRINTING PROCLAMATION.
(Section 474.)
At on , A. did print a certain pro-
clamation, to wit [describe it], and did then and there unlawfully cause the
same to falsely purport to have been printed by the King's Printer for
Canada, knowing that the same was not so printed.
SENDING A FALSE TELEGRAM.
(Section 475.)
At on , A., with intent to defraud, did cause
and procure a certain telegram in the words and figures following, [set out
the telegram], to be sent, (or "delivered"), to B., as being sent by the
authority of C., knowing that it was not sent by such authority, with in-
tent that the said telegram should be acted on as being sent by the said C.
SENDING FALSE TELEGRAMS, OR LETTERS, WITH INTENT TO
INJURE OR ALARM.
(Section 476.)
At on , A., with intent to injure (or "alarm")
B., did send (or "cause" or "procure to be sent"), to the said B., a
certain telegram (or "letter") containing matter which he the said A.,
knew to be false, to wit, a telegram (or "letter,") in the words and
figures following, [set out the telegram or letter].
COUNTERFEITING REVENUE STAMPS.
(Section 479 (a).)
At on , A. fraudulently did counterfeit
a certain revenue stamp, to wit, [describe it].
SELLING COUNTERFEIT REVENUE STAMPS.
(Section 479 (6).)
At on , A. knowingly did sell (or "ex-
pose for sale," or " utter," or " use,") a certain counterfeited revenue stamp,
to wit, [describe it].
C.C.P. — 42
658 MANNER OF STATING OFFENCES.
FALSIETING REGISTERS.
(Section 480 (a).)
At on , A. unlawfully did destroy Co*"
"deface," or "injure,") a certain register then and there required by law
to be kept as the register {of " baptisms," or " marriages," or " deaths^'
or " burials,") of the parish of
OR,
(Section 480 (6).)
At on , A. unlawfully did insert in a certain
register then and there required by law to be kept as the regisrter of births
[etc.], of the parish of , a certain entry known by him. the said
A., to be false, and relating to the birth (or " marriage"), [etc.], of
FALSELY CERTIFYING EXTRACTS FROM REGISTERS.
(Section 481.)
At on , A., being a person authorized and
required by law to give certified copies of entries in a certain register,
then and there required by law to be kept as the registry of births {,or
"marriages") etc., of the parish of did certify a certain
writing to be a true copy of {or extract from") a certain entry in the said
register to wit, an entry of the birth {or "marriage"), [etc.], of
knowing the same to be false.
FALSE ENTRIES IN BOOKS RELATING TO PUBLIC FUNDS.
(Section 484 (o).)
At on , A., in a certain book of account
kept by the Bank, for the Government of Canada, in which said
book were then kept and entered the accounts of the owners of certain trans-
ferable stock, [annuity or other public fund], wilfully, with intent to de-
fraud, did make a certain false entry, to wit, [describe the false entry'}.
FRAUDULENT TRANSFER OF STOCK.
(Section 484 (6).)
At on , A., a transfer of a certain share
and interest of and in certain stock [annuity or other public fund], trans-
ferable at the Bank, arting therein for the Government of Can-
ada, to wit, the share and interest of B., of and in [mention the amount
and description of the stock, etc.], did, with intent to defraud, make, in
the name of C, he the said C. not being then the true and lawful owner
of the said stock, [etc.], or any part thereof.
MAKING FALSE DIVIDEND WARRANTS.
(Section 485.)
At on , A., being a clerk in the employ
of the Government of Canada, with intent to defraud, did make out and de-
liver to one B., a certain dividend warrant for five hundred dollars, being a
greater amount than the said B. was then entitled to, the amount to which
the said B. was then entitled being only three hundred dollars.
FORGERY OF A TRADE MARK.
(Section 488.)
At on , A. knowingly did forge {or cause to be
forged"), a certain trade-mark, to wit, [describe it] with intent to defraud.
FALSELY APPLYING A TRADE MARK.
(Section 4S8.)
At on , A. with intent to defraud, did
falsely apply {or "cause to be applied") to certain goods, to wit, [describe
them], a certain trade-mark, to wit, [describe it], (or "a mark so nearly
resembling a certain trade-mark, to wit, [describe it], "as to be calculated
to deceive ").
MANNER OF STATING OFFENCES. ' 659
COMBINATION IN RESTRAINT OF TRADE.
(Section 498 (a).)
At on , A. conspired, combined, agreed
and arranged with B., C. and D., and with the Company,
to unduly limit the facilities for transporting (or "producing" or "supply-
ing," or "storing," or "dealing in," or "manufacturing"), cotton goods,
[etc.], a subject of trade and commerce.
OR,
(Section 498 (d).)
At on , A. conspired, combined, agreed,
and arranged with B., C. and D., and with the Company
to unduly prevent and lessen competition in the production (or " manufac-
ture," or " purchase," or " barter," or " sale," or " transportation," or
"supply"), of woollen goods, [etc.], a subject of trade and commerce.
CRIMINAL BREACH OF CONTRACT.
(Section 499.)
At on , A. wilfully did break a certain
contract, to wit, [describe it], theretofore made by Dim, well knowing (or
"having reasonable cause to believe") that the probable consequences of
his so doing would be to endanger human life (or " cause serious bodily
injury," or " expose valuable property to destruction," or "serious injury.")
INTIMIDATION.
(Section 501 (a).)
At on , A. and B., wrongfully and with-
out lawful authority, did use violence to (or injure the property of") C,
by [describe the personal violence or the injury to property, (as the case
may be)], with a view to compel the said C. to employ D., E. and F., whom
he the said C, had a lawful right to refuse to employ (or " to compel the
said C. to discharge from and refuse to keep in his employ G., and H., whom
he the said C. had a lawful right to retain in his employ").
OR,
(Section 501 (b).)
At on , A., B. and C, being workm.en
in the employ of D., wrongfully and without lawful authority, did, by
means of threats of using violence to (or "of injuring the property of")
the said D., then and there intimidate the said D., with a view to compel
the said D. to raise and advance the wages of them the said A., B. and C.
OR,
(Section 501 (e).)
At on , A. and B., wrongfully, and
without lawful authority, did follow C. in a disorderly manner in or through
the street or road called with a view to compel the said C.
to cease working for D., he the said C, having a lawful right to continue
to work for the said D.
INTIMIDATION BY PICKETING.
(Section 501 (/).)
At on , and on divers other days before
and since that date, A. and B., wrongfully, and without lawful authority,
did beset and watch the building, workshop, and premises of C, where D.
was then working in the employ of the said C, with a view to compel the
said D. to cease from working in the employ of the said C, he the said D.
having a lawlul right to continue to work in the employ of the said C, (or
" with a view to compel the said C. to discharge and to discontinue employ-
ing the said D.. he the said C, having a lawful right to continue the said
D. iQ his employ ").
660 MANNER OF STATING OFFENCES.
INTIMIDATION BY ASSAULTS OR THREATS, IN PURSUANCE OF
AN UNLAWFUL COMBINATION.
(Section 502.)
At on , A., B. and C, having, before then,
conspired, combined, confederated and agreed together to raise the rate of
wages then usually payable to workmen, in a certain trade, business and
manufacture, to wit, the trade, business and manufacture of brass found-
ing (or " calico printing," or " silk weaving," or " engine making," or
"cigar making,"), [etc.], did, then and there in pursuance of the said con-
spiracy, unlawfully assault (or " use violence," or " threats of violence
to") B., with intent to hinder him from working {or "being employed")
at such trade, business, and manufacture.
TRADING STAMPS.
(Section 505.)
On at , A. issued (or "gave," or
"sold," or " ofifered to issue," etc.), to B., a merchant (or "dealer in
goods") certain trading stamps, [describe them and give the quantity], for
use in his business.
PART VIII.
WILFUL AND FORBIDDEN ACTS RESPECTING PROPERTY.
WILFULLY DESTROYING A HOUSE, ETC., AND ENDANGERING
LIFE.
(Section 510 (A) (a).)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did by means of an
explosion destroy (or "damage") a certain dwelling-house (or "ship," or
"boat"), to wit, [describe it], the property of B., there being certain per-
sons, to wit, C. and D., then in the said dwelling-house, [etc.], and the said
destruction (or "damage") did, then and there, cause actual danger to life.
WILFULLY DESTROYING A RIVER BANK, ETC., AND CAUSING
DANGER OF INUNDATION.
(Section 510 (A) (&).)
At on , A., wilfully, without legal
justification or excuse, and w-ithout colour of right, did destroy (or " dam-
age") the bank (or "dyke") of a certain river called the river St. Law-
rence, whereby and by means whereof there was actual danger of inunda-
tion.
Wir^ULLY DESTROYING BRIDGES.
(Section 510 (A) (c).)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did destroy (or
"damage") a certain bridge (or "viaduct," or "aqueduct") situated in
aforesaid, and over (or "under") which a certain
highway (or "railway," or "canal"), to wit, [describe it], passes, and
the said destruction (or "damage"), was so done by the said A., with in-
tent to render and did render the said bridge (or "viaduct," or "aqueduct/'
or "highway," or "railway," or "canal") dangerous or impassable.
MANNER OF STATING OFFENCES. 661
WILFULLY DESTROYING OR DAMAGING A RAILWAY.
(Section 510 (A) (d).)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did destroy {or "dam-
age") a certain railway, to wit, [describe it], with intent to render and so
as to render the same dangerous or impassable.
WILFULLY DESTROYING OATTLE, ETC.
(Section 510 (B) (6).)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did destroy {or "dam-
age") one cow, the property of B., by then and there killing {or "maim-
ing," or "poisoning," or "wounding") the said cow.
WILFULLY DAMAGING A SHIP WITH INTENT TO DESTROY OR
RENDER IT USELESS.
(Section 510 (0) (a).)
At on . A., wilfully, without legal
justification or excuse, and without colour of right, did damage a certain
ship, to wit, [describe it], with intent to destroy {or "render useless")
the said ship.
WILFULLY DAMAGING A CANAL, ETC.
(Section 510 (C) (d).)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did damage a certain
canal {or "navigable river"), to wit, [describe it], by then and there
interfering with and breaking down the flood-gates {or "sluices") thereof,
with intent and so as thereby, then and there, to obstruct the navigation
thereof.
WILFULLY DAMAGING THE SLUICE OF A PRIVATE WATER.
(Section 510 (0) (e).)
At on . A., wilfully, without legal
justification or excuse, and without colour of right, did damage {or
"destroy") the flood-gate {or "sluice") of a certain private water, to
wit, the fish pond of B., situated in aforesaid, with intent to
take {or "destroy"), {or "so as to cause the loss or destruction of") the
fish therein.
DAMAGING A PRIVATE FISHERY.
(Section 510 (C) (/).)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did damage a certain
private fishery {or "salmon river"), by putting into it large quantities of
lime, with intent, thereby, then and there to destroy the fish therein {pr
to be put therein).
WILFULLY DESTROYING GOODS IN PROCESS OF
MANUFACTURE.
(Section 510 (C) (7i).)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did destroy {or "dam-
age") certain goods, to wit, [describe them], the property of B., and then
being in process of manufacture, with intent, thereby, then and there to
render the same useless.
663 MANNER OF STATING OFFENCES.
WILFULLY DAMAGING MANUFACTURING MACHINES.
(Section 510 (C) (»).)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did damage (or
"destroy" certain agricultural (or "manufacturing") machines, to wit,
[describe them], the property of B., with intent, thereby, then and there to
render the same useless.
WILFULLY DAMAGING OR DESTROYING TREES IN A PARK, ETC.
(Section 510 (D) (o).)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did damage, (or de-
stroy ") two fir trees the property of B., then growing in a certain park,
(or "pleasure ground," or "garden," or "land adjoining and belonging "to
the dwelling-house ") of the said B., thereby, then and there, injuring the
said trees to an extent exceeding in value the sum of five dollars.
WILFULLY DAMAGING A POST-LETTER BAG, ETC.
(Section 510 (D) (6).)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did damage (or
"destroy") a certain post-letter bag (or "post-letter") the property of
the Postmaster-General.
WILFULLY DA3IAGING, BY NIGHT, PROPERTY TO THE AMOUNT
OF TWENTY DOLLARS.
(Section 510 (D) (e).)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did damage (or,
" destroy " ) , by night, seven birch trees, the property of B., then growing
in a plot of land belonging to the said B., thereby, then and there, injuring
the said trees to the value of twenty dollars.
OR,
(Section 510 (D) (e).)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did damage (or
"destroy"), by night, thirty -five patterns for the making of waterproof
coats, the property of B., thereby, then and there, injuring the said pat-
terns to the value of twenty dollars.
WILFULLY DESTROYING ANY OTHER PROPERTY TO THE
AMOUNT OF TWENTY DOLLARS.
(Section 510 (E.) )
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did damage (or
"destroy"), one crate of crockery and glassware, the property of B.,
therein, then and there, injuring the said crockery and glassware to the
value of twenty dollars.
ARSON.
(Section 511.)
At on . A., wilfully, without legal
justification or excuse, and without colour of right, did set fire to a certain
building, to wit, a dwelling-house belonging to B., and situated in
aforesaid.
MANNER OF STATING OFFENCES. 663
OR,
(Section 511.)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, and with intent to
defraud, did set fire to a certain building, to wit, a store situated in
aforesaid and belonging to him the said A.
OR,
(Section 511.)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did set fire to a certain
stack of vegetable produce (or "of mineral," or "vegetable fuel"), to wit,
[describe the stack], belonging to B,
ATTEMPT TO COMMIT ARSON.
(Section 512.)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did attempt to set fire
to a certain building, to wit, a dwelling-house belonging to B., and situated
in aforesaid.
WILFULLY SETTING FIRE TO CROPS, ETC.
(Section 513 (o).)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did set fire to a certain
crop (or "wood," or "forest," or "coppice," or "plantation," or
"heath," or *' gorse," or "furze," or "fern"), to wit, (describe the crop),
[etc.], the property of B.
NEGLIGENTLY SETTING FIRE TO FOREST, ETC.
(Section 515.)
At on , A., negligently, reck-
lessly, and with wanton disregard of consequences, (or " in violation of a
certain provincial law to wit, "), did unlawfully set fire to
a certain forest (or "tree," or "manufactured lumber," etc.), situated (or
"being") on the Crown domain (or "land leased or lawfully held for the
purpose of cutting timber," etc.), so that the said forest, [etc.], was
injured (or " destroyed ") .
PLACING OR THROWING EXPLOSIVES WITH INTENT TO
DESTROY A BUILDING, ETC.
(Section 112.)
At on , A., wilfully, did place near (or
"throw into") a certain building (or "ship") to wit, [describe the bund-
ing or ship], a certain explosive substance, to wit, five pounds of gunpowder,
with intent, thereby, then and there to destroy (or "damage") the said
building (or "ship").
MISCHIEF ON RAILWAYS.
(Section 517 (a).)
At on , A., in a manner likely
to cause danger to valuable property, to wit, to a certain engine and certain
cars of the Canadian Pacific Railway, on their railway at
aforesaid, did displace a rail (or "sleeper," etc.), on
and belonging to the said railway.
664 MANNBB OP STATING OFFENCES.
OR,
(Section 517 (e).)
At on , A. did make a false
signal on (or "near") the railway of the Grand Trunk Railway Company
at aforesaid, in a manner likely to cause danger to
valuable property, to wit, to a certain engine and certain cars of the said
Grand Trunk Railway Company, on their said railway.
MISCHIEF ON RAILWAYS WITH INTENT.
(Section 517 (2).)
At on , A. did break and
injure a rail (or "sleeper") on and belonging to the railway of the Grand
Trunk Railway Company, at aforesaid, with intent, thereby,
then and there, to cause danger to a certain engine and certain cars of the
said Grand Trunk Railway Company, on their said railway.
MISCHIEF TO MINES.
(Section 520.)
At on , A. did cause a quantity
of water (or "earth," or "rubbish,") to be conveyed into a certain mine
(or "well of oil"), to wit [describe it], the property of B., with intent,
thereby, then and there, to injure (or "obstruct the working of") the
said mine (or "well of oil").
WILFULLY REMOVING MARINE SIGNALS.
(Section 526.)
At on , A., wilfully, without legal
justification or excuse and without colour of right did alter, (or " remove,"
or "conceal"), a certain signal (or "buoy") used upon the river St.
Lawrence, for the puiposes of navigation.
WILFUL INJURIES TO POLL-BOOK, ETC.
(Section 528.)
_ At on . A., wilfully, without legal
justification or excuse, and without colour of right, did destroy, (or
"injure," or "obliterate") a certain writ of election, (or "return to a
writ of election," or "poll-book," or "voters' list," or "ballot"), [etc.], to
wit, [describe the election writ, etc.], prepared or drawn out according to
a certain law in regard to Dominion (or " provincial," or " municipal," or
"civic"), elections, to wit, the Act [cite the Act applying to the case in
hand],
INJURIES TO BUILDINGS BY TENANTS.
(Section 529.)
At on , A., being then
possessed of a certain dwelling-house situated in aforesaid,
and then held by him the said A., as tenant thereof for an unexpired term
of three years, did wilfuUy, without legal justificaton or excuse, without
colour of right, and to the prejudice of B., the owner thereof, pull down and
demolish the said dwelling-house.
WILFULLY DESTROYING TREES AFTER TWO PREVIOUS
CONVICTIONS.
(Section 533.)
At on , A., wilfully, without legal
justification or excuse and without colour of right, did damage (or
"destroy") one shrub, so that the injury done by such damage (or
" destruction ") amounted to the value of fifty cents, the said shrub being
MANNER OF STATING OFFENCES. 665
the property of B., and then growing in a certain plot of land situated and
being in aforesaid : And the said jurors say, that, heretofore, to
wit, at on (before the committing of the herein-
before mentioned offence) the said A. was duly convicted, before C, one of
His Majesty's justices of the peace for the district of of
having at on [set out the offence
forming the basis of the first conviction], and was adjudged, for his said
offence, to pay, [etc.], and, in default of payment, [etc.], to be imprisoned,
[etc.] : And the said jurors further say, that heretofore, to wit, at
on , (before the committing of the
firstly hereinbefore mentioned offence, but after the next hereinbefore men-
tioned conviction), the said A. was again duly convicted before D., one of
His Majesty's justices of the peace for the district of
of having at on ,[set out the
second convictioni : And so the jurors aforesaid say, that, on the day and
year first aforesaid, the said A., wilfully, without legal justification or
excuse and without colour of right, did damage {or "destroy") the said
shrub, and did thereby do injury amounting to the value of fifty cents, after
having been twice convicted of the offence of wilfully damaging {or
destroying") a shrub, {or "tree"), [etc.], and doing injury amounting to
the value of at least twenty-five cents.
WILFULLY DAMAGING VEGETABLE PRODUCTIONS AFTER
PREVIOUS CONVICTION.
(Section 534.)
At on , A., wilfully, without legal
justification or excuse, and without colour of right, did damage {or
"destroy") fifty cauliflowers, the property of B., then growing in a certain
garden of the said B., situated in aforesaid : And the said
jurors say, that, heretofore, to wit, at on
(before the committing of the hereinbefore mentioned offence),
the said A. was duly convicted before C, one of His Majesty's justices of
the peace, for the district of of having at on
, [set out the offence forming the basis of the first con-
viction], and was adjudged, for his said offence, to pay, [etc.], and in default
of payment, [etc.], to be imprisoned, [etc.] : And so the jurors aforesaid
say, that on the day and year first aforesaid. A., did, wilfully, without
legal justification or excuse, and without colour of right, damage {or
"destroy"), the said fifty cauliflowers after having been previously con-
victed of the like offence of wilfully damaging {or "destroying") vegetable
productions in a garden, [etc.].
PART IX.
OFFENCES RELATING TO BANK NOTES. COIN AND COUNTERFEIT
MONEY.
PURCHASING, RECEIVING OR POSSESSING A FORGED BANK
NOTE.
(Section 550.)
On at , A., without lawful authority
or excuse, purchased, {or "received") from B. {or "had in his posses-
sion") a forged bank note, to wit, {describe it), knowing it to be forged.
COUNTERFEITING CURRENT SILVER COIN.
(Section 552 {a).)
At on , A. did unlawfully make (^or
"begin to make") twenty pieces of false and counterfeit coin resembling
(or "apparently intended to resemble or pass for") current silver dollars
(or "half dollars," or "ten cent pieces").
666 MANNER OF STATING OFFENCES.
BUYING, SELLING, OR DEALING IN COUNTERFEIT COIN.
(Section 553.)
At on , A, did, unlawfully and with-
out lawful authority or excuse, buy (or '"sell," or "receive," or "pay,"
or *' put off ") twenty pieces of false and counterfeit coin, resembling (.or
"apparently intended to resemble or pass for") current silver dollars,
at and for a lower rate and value than the same imported (or were appar-
ently intended to import).
IMPORTING COPPER COIN.
(Section 554.)
At on , A. did, unlawfully, import
and receive into Canada twelve pieces of copper coin not being current
copper coin with the intention of putting the same into circulation as cur-
rent copper coin.
EXPORTING COUNTERFEIT COIN.
(Section 555.)
At on , A. did, unlawfully and with-
out lawful authority or excuse, export from Canada, twelve pieces of false
and counterfeit coin resembling (or "apparently intended to resemble and
pass for") current silver dollars, he the said A. then and there well know-
ing the same to be counterfeit.
BRINGING COINING INSTRUMENTS INTO CANADA.
(Section 557.)
At on , A., unlawfully, knowingly
and without lawful authority or excuse, did convey out of one of His
Majesty's Mints into Canada, one puncheon (or " counter-puncheon," or
"matrix"), [etc.], used or employed in or about the coining of coin.
CLIPPING CURRENT COIN.
(Section 558.)
At on , A. did unlawfully impair
(or "diminish," or "lighten"), twelve pieces of current silver coin called
dollars, with intent that each of the said twelve pieces so impaired, (or
"diminished," or "lightened"), might pass for a current silver dollar.
DEFACING AND TENDERING CURRENT COIN SO DEFACED.
(Section 559.)
At on , A. did unlawfully deface one piece of
current silver -coin, called a dollar, by then and there stamping thereon
certain names (or "words"), to wit , and did afterwards unlaw-
fully tender the said current silver coin, so defaced as aforesaid.
POSSESSING COUNTERFEIT COIN, WITH INTENT.
(Section 561.)
At on , A. unlawfully had in his custody and
possession twelve pieces of counterfeit coin resembling (or " apparently
intended to resemble, or pass for") current silver dollars, with intent to
utter the same, he the said A. then well knowing the same to be counterfeit.
COUNTERFEITING FOREIGN COIN.
(Section 563 (a).)
'At on , A., unlawfully did make (or " begin to
make") a counterfeit coin resembling (or "apparently intended to
resemble or pass for") the silver coin of a foreign country, to wit, the
silver coin of the United States of America, called a dollar, not being
current coin.
MANNER OF STATING OFFENCES. 667
UTTERING COUNTERFEIT COIN.
(Section 564.)
At on , A. did utter to B. one piece
of counterfeit coin, resembling {or " apparently intended to resemble or
pass for"), the current silver coin called a dollar, he the said A. then well
knowing the same to be counterfeit.
UTTERING LIGHT COIN.
(Section 565.)
At on , A. did utter as being current
a certain silver coin, to wit, a silver dollar of less than its lawful weight,
he the said A. then well knowing the said coin to have been impaired, {or
''diminished," or "lightened"), otherwise than by lawful wear.
ATTEMPT TO COMMIT AN INDICTABLE OFFENCE.
(Section 572.)
At on . , A. did attempt to
commit the indictable offence of theft of one gold watch of the value of
sixty-five dollars of the goods and chattels of B.
OR,
(Section 572.)
At on , A. did solicit and
advise B. to steal one piano of the goods and chattels of C, whereby he the
said A., did attempt to commit the indictable offence of theft.
OR,
(Section 572.)
At on , A. did attempt to
commit the indictable offence of bigamy {or "burglary"), [etc.], by then
and there, [set out the means used in making the attempt],
CONSPIRACY TO COMMIT AN INDICTABLE OFFENCE.
(Section 373.)
At on , A., B. and C. did conspire,
combine, confederate and agree together to commit a certain indictable
offence, to wit, the crime of arson {or " burglary," or " rape," or " forgery "),
[etc.] by then and there conspiring, combining, confederating, and agree-
ing together to set fire to {or "break and enter") or [etc.], [describe the
crime agreed upon and mention the property or person, or both, {as the case
may be), to be affected thereby]. (A count may be added setting out the
overt acts of the conspiracy.)
CONSPIRACY TO BRING FALSE ACCUSATION OF CRIME.
(Section 573.)
At on , A. B., and M. B., (his wife).
C. D. and E. F. did conspire, combine, confederate and agree together to
prosecute G. H., for an alleged offence, to wit, upon a false charge or accu-
sation falsely charging and accusing that he, the said G. H., had, then,
lately before, assaulted, ravished and carnally known the said M. B. with-
out her consent, they the said A. B., M. B., C. D., and B. F., then well
knowing the said G. H., to be innocent of the said alleged offence.
And the said jurors further present that, afterwards, at aforesaid,
on the day and year aforesaid, the said A. B., and M. B., his wife, C. D.,
a^d E. F., in pursuance of their said conspiracy, did attend together before
J. N., Esquire, one of His Majesty's justices of the peace for the district of
to whom they, the said A. B., and M. B., his wife, C. D., and E, F.,
668 MANNER OF STATING OFFENCES.
did then and there make the said false charge and accusation, falsely
charging and accusing the said G. H., with and of the rape aforesaid ; and,
then and there, before the said J. N., she, the said M. B., in the presence of
and in company with the said A, B., C. D., and E. F., and in further pur-
suance of the said conspiracy, did make her written and sworn information
and complaint, falsely charging and accusing that the said G. H., had, then,
lately before, assaulted, ravished and carnally known her, the said M. B.,
without her consent.
And the said jurors further present, that, afterwards, to wit, in the
Court of King's Bench [or (name the Court), as the case may be] of the
province of, holden at in and for the
district ( or " county ") of on . in the
year aforesaid, they the said A. B., and M. B. his wife, C. D., and E. F., in
further pursuance of their said conspiracy, did cause and procure to be
falsely laid and exhibited, before the Grand Jury then and there sworn
before the said Court, a bill of indictment falsely charging and accusing
the said G. H., with and of the rape aforesaid ; which said bill of indict-
ment was by the said Grand Jury, then and there, returned into the said
Court, thus endorsed : — " No Bill."
ACCESSORY AFTER THE FACT INDICTED WITH THE
PRINCIPAL OFFENDER.
(Section 574.)
(After charywig A., as the principal offender, with the principal offence,
proceed thus) : —
And the said jurors further present, that C, well knowing the said A. to
have done and committed the said offence, as aforesaid, did, after the same
was so done and committed as aforesaid, to wit, on the day and year afore-
said, receive, comfort and assist him, the said A., in order to enable him to
escape.
ACCESSORY AFTER THE FACT INDICTED ALONE, THE
PRINCIPAL OFFENDER HAVING BEEN CONVICTED.
(Section 575.)
(After stating the principal offence and the principal offender's convic-
tion, proceed thus) : —
And the said jurors further present, that C, well knowing the said A.
to have done and committed the said offence, as aforesaid, did, after the
same was so done and committed as aforesaid, to wit. on the day and year
aforesaid, receive, comfort and assist him, the said A., in order to enable
him to escape.
INDEX.
(Reference is to page numbers.)
Abandoning.
Appeal, 349, 358.
Abettors, 59-62.
Abobtion.
Operating with intent, 52.
Attempt to procure, 66.
Absence.
Of accused stops proceedings in preliminary inquiry, 154.
Different in summary convictions, 154.
Absolute Jurisdiction of Magistrate.
Disorderly houses, 392-397.
Seafaring persons, 397.
In certain provinces, 397.
In cities of 25,000, 399.
Accessories.
Before the fact, 59, 60.
After the fact, 62, 63.
Husband and wife as, 63.
Accomplices, 59.
Should not be bailed out, 200.
Evidence of, 205.
Accused.
Compelling appearance of, 139-153.
Procedure on appearance of, 177-185.
" on non-appearance of, 154.
Absence of, prevents proceeding, 154.
Must be present at preliminary inquiry, 154, 177.
If discharged on preliminary inquiry, may be re-arrested, 182, 222.
Remand of, 195-199.
Bail on remand, 199, 200.
Evidence must be given in presence of, 207.
Depositions to be read over to, 211.
Statement of, on preliminary inquiry, 211-214.
Giving evidence in his own behalf, 212, 538, 539.
Witnesses for, 221.
Committing for trial, 221-224.
Discharge of, 222.
Confessions and admissions of, 214-220.
Election of, on summary trial, 407-410.
Admissions by, 416.
Acknowledgment.
. Of recognizance, 320.
Acquittal.
As a bar to further actions, 39, 40, 41, 451.
Of theft not bar to receiving, 41.
After summary trial, Part XV., 183.
" XVI., 182, 183.
preliminary inquiry, 121, 182, 222.
670 INDEX.
Actions.
Against Justices and Magistrates, 90-113, 200.
Vexatious, against Justices and Magistrates, 12, 91.
None for anything done under conviction until quashed, 91, 92.
Magistrate acting without, or in excess of, jurisdiction, 92, 93.
" maliciously, 92, 97.
Construction of ss. 1 and 2 of 11 and 12 Vict., c. 44, 93.
Magistrate must have jurisdiction over the particular matter or
individual, 94.
When time limit for, begins to run, 97.
Against Magistrates for wilfully exacting unauthorized fees, 105,
106.
Order protecting Justice or Magistrate from, 428, 429, 482, 483.
Limitation of, against Justices, 91-95, 97, 551, 552.
" against oflScials, 551, 552.
Pleading general issue, 552.
Tender of amends, 101, 551, 552.
Notice of action, 97-100, 551.
Actual Bodily Harm.
Jurisdiction of Magistrates, 382, 383, 423.
Actus non facit beum nisi mens sit bea, 47.
Adjoltinment.
Detention of accused pending, 92, 94.
To examine sick witnesses, 187, 188.
Bail on remand, 199, 200.
In summary conviction trials, 152, 155, 255, 257, 260-263,
Must be to certain time and place, 257.
Proceedings on non-appearance of defendant, after, 262.
Power of, is discretionary with Justice, 261, 262.
Reasonable, must be allowed, 262, 263.
"When judgment reserved, 263.
Waiver of right to, 263, 264.
Of hearing appeal. 340, 341.
Adjudication, 221, 222, 267-269, 304, 305.
Enforcing. 309-311.
Administration of Law and Justice, 3.
Admiralty.
Jurisdiction on inland lakes, 132,
high seas, 169.
Admissibility.
Of evidence, 208, 538-542.
Admissions and Confessions.
By accused, 214-220, 416, 540, 541.
Admission to Bail. — See Bail.
In extradition proceedings, 234, 475. (See Recognizance.)
Adverse Witness.
Impeaching, 546.
Advocates.
Not eligible as Justices of the Peace, 75.
Affidavit.
Of service of summons, 147, 148.
In habeas corpus proceedings, 460-462.
In certiorari proceedings, 489, 511, 518.
INDEX. 671
Affidavit — Continued.
Of justification on recognizance, 510, 511.
Of execution of recognizance, 510, 511.
Forms of, 599.
AFFIBMATIOIf.
By witness instead of oath, 203, 548, 549.
Affrays, 54.
Age of Child.
Under 7 years old, 43.
Evidence of, 44, 549.
Aiders and Abettors, 58-62, 244.
Aid.
To peace officer, 556.
Alberta, Province of.
Justices of the Peace in, 26, 27.
Crown practice rules in, 533-537.
Aliens.
Offences by, on waters, 132.
Allegiance.
Oath of, 9, 31.
Alternative.
Charges in informations, 134, 185, 186, 246,
Convictions must not charge offences in the, 273.
Amends.
Tender of, by Justices, 101, 551, 552.
Amendment.
Of information, 122, 134, 185, 245, 246, 255.
" commitment, 223, 444, 466, 484.
" conviction, 344, 352, 427, 444, 504-507.
Animals, Cruelty to.
Prosecution to be commenced in 3 months after offence, 551.
Appeal.
From order for sureties, there is no, 319.
" convictions or orders, 320-350.
Person aggrieved, 321.
Procedure on appeal, 327-339.
Notice of appeal, 329-334.
Contents of notice, 333, 334.
Recognizance or deposit, 334-339.
Hearing of appeal, 339-344.
Adjournment of hearing, 340.
Judgment on, is final, 341, 342.
Evidence taken before Justice, 341, 342.
Judgment on merits, 343, 344.
Costs when appeal not prosecuted, 344-346.
Proceedings when appeal fails, 346-347.
Transmission of conviction by Justice, 347, 348.
Costs of appeal and recovery of same, 349.
Abandonment of appeal, 349, 350.
Stating a case, 350-354. See Stated Case.
By way of reserved case, 416-421.
From conviction under sec. 773, 452, 453.
In habeas corpus proceedings, 479, 480.
By way of certiorari, 487-489.
672 INDEX.
Appearance.
Waiver of irregularities in summons, 151, 152.
jurisdiction by, 153, 159, 252.
Accused's non-, 154, 253, 254.
Prosecutor's non-, 255.
Application.
Of summary convictions. Part XV., 237.
" fines, 105.
Army and Navy.
Arrests by officers of, without warrant, 555.
Arraignment.
Of defendant in summary convictions, 256.
" accused in summary trials, 406-413.
Arrests.
Warrant of, 139, 140, 155-161.
Resistance to, when irregular, 168.
By peace officer without warrant, 555-557.
" owner of property, 555.
" any person without warrant, 553-555.
During flight. 556, 557.
the night, 162, 555.
Of persons committing breaches of the peace, 557.
" " in common gaming house, 390.
" suspected deserters, 170.
" witnesses disobeying subpcena, 186, 565.
" persons out of jurisdiction, 167-169.
" " on suspicion without warrant, 159, 556.
Manner and mode of arrest, 161-166, 556, 557.
Officer should have warrant with him, 162, 556.
Constable using handcuffs, 163.
By constable who laid the information, 163.
Cause of arrest should be given, 162, 556.
Using force in making, 163, 164, 556, 557.
Excess of force in making, 163, 556, 557.
Breaking open doors, 164, 165, 166.
Pursuit into adjoining division, 166, 167.
On backed warrant, 167-169.
Proceedings after, 170, 171.
Persons may be re-arrested when discharged on preliminary
inquiry, 182.
On telegram, 160, 161, 470, 483.
Without warrant, 553-557.
Private persons making, 165, 166, 553-555.
Preventing escape after, 555, 557.
breach of peace, 557. (See Constable.)
Articles of the Peace.
Sureties to keep, 314-319, 441, 442.
Forms, 582, 583.
Assault.
Definition of, 295.
Aggravated, 297.
Common, 242, 295.
INDEX. 673
Assault — Continued. • -»:r;'f:v;
Costs on conviction of, 298-303. r ■. ^ -
Occasioning bodily harm, 382, 383, 443.
Of peace officer in discharge of his duty, 383, 443.
Conviction for, on complaint only for sureties to keep the peace,
268.
Of person executing process, 149.
Indecent, 383, 443.
Conviction of, as a bar, 39.
With intent to murder, 50.
Title to land in question, 241, 295.
Dismissal of complaint for, 296.
Certificate of dismissal, 296, 297.
Bar to civil action, 296-298.
Costs on conviction by indictment for, 434.
Assembly.
Unlawful, 55. 56.
Associate Justices and Priority, 84-86.
Atheist.
Competency of, as a witness, 205, 206.
Attempt.
To commit offences, 64-67, 138.
Assault with intent to rape, 65.
Attendance.
Of witnesses at preliminary inquiry, 186.
" " summary conviction trial, 247, 248.
" " summary trial of indictable offences, 449.
Attorney.
Cannot act as Justice of the Peace, 7, 21, 24, 26, 75.
Attorney-General.
May intervene in summary trials, 401.
Entitled to certiorari as of course, 489, 491, 492.
Autrefois Acquit, 39-41, 451.
Convict, 39-41, 451.
Backing Warrants, 167, 168, 16B, 247.
A purely ministerial act, 168.
Form of endorsement, 167, 168, 559, 582.
Distress Warrants, 305. Form, 582.
Bail. (See Recognizance.)
Under sec. 696 of the Code, 227, 228.
After committal, 229-235.
In extradition cases, 234.
Order for, by Court or Judge, 235.
On remand at preliminary inquiry, 199, 200.
" adjournment, 261, 264.
Render of accused by sureties, 231.
Running of sentence suspended while accused out on, 308.
Estreat of recognizance, 236.
Commitment on surrender by bail, form of, 614,
Bawdy Houses. (See Disorderly house.)
Barrister- at- Law.
Not eligible as Justice of the Peace, 21, 75.
c.c.p. — 43
674 INDEX.
Bench Wabbants.
Form of, 591.
Betting House.
Summary trial for keeping, 388.
Punishment for, on conviction, 443.
Beyond the Seas.
Offences on land, 169.
Bias ob Intebest.
Justices disqualified by, 77-82.
Binding Oveb.
Prosecutor, 222, 223, 225.
Witnesses, 225, 226.
Boundabies.
Offences committed on, 131, 132.
Bbeach of Peace.
Arrest for, 53, 557.
Preventing, 53, 557.
Witnessing, 53, 557.
Bbeaking Pbison.
Attempt to, 66.
Bbidges.
Offences committed on, 131.
Bbitish Columbia.
Criminal law of England in, 36.
Magistrates and Justices of the Peace in, 19, 20, 381, 382.
Gaols in, 313, 427.
Habeas corpus proceedings in, 458.
Certiorari proceedings in, 499.
Rules respecting same, 510, 524-526.
Bbitish Nobth Amebica Act of 1867, 3, 4.
Bbitish Ship.
All persons on, are amenable to British law, 169, 170.
BUBGLABY.
Local description and time of day required to be set out in in-
formation or indictment, 126, 130.
Canada Evidence Act, 538-549. (See Evidence.)
Canada Tempebance Act.
See Liquor License Acts, cases under.
Capacity fob Cbime.
Children under 7, 43, 44.
" between 7 and 14, 43, 44.
Caption.
To depositions, 207.
Cabnal Knowledge.
By boy under 14, 44.
Case Stated.
On summary conviction, 350-357.
Forms respecting, 610-613.
Rules respecting, 531-533, 536, 537.
See Stated Case.
Case Resebved.
On summary trials, Part XVI., 416-421.
INDEX. 675
Cattle.
Attempt to Kill or injure, 66.
Killing, 50.
Certificate,
Of non-appearance to be endorsed on recognizance, form of, 593.
" previous conviction, 431.
Of dismissal of indictable offence, 183, 450, 451.
summary conviction, 183, 184, 294, 296, 297.
of assault, 296, 297.
Forms of certificate, summary conviction, 577.
" " summary trial, 587.
Ceetiorari.
Nature of writ, 487.
General principles governing, 488, 489.
Difference from appeal, 488.
Taken away by statute, when granted nevertheless, 488-491, 494,
495.
Attorney-General may have as of course, 489-492, 511.
Where excess of, or no, jurisdiction, 488, 489, 490, 494, 495, 498.
Affidavit verifying proceedings, 490, 518. •
What is open to review on, 224, 490.
Conviction bad on its face, 490.
Notice of application for, 488, 515-517.
Private prosecutor has same privileges as the Crown, 491.
Recognizance, 488, 491, 509-512.
Deposit as security, 509, 512.
Necessary before conviction quashed, 348, 349, 468, 469, 473, 483,
497.
Appeals from summary convictions, 492-497.
When appeal taken, no certiorari, 493.
Exceptions to this rule, 493.
Should be refused if right of appeal exists, 493.
Quebec, jurisdiction in, 496, 497.
When granted and when not, 497, 498, 499.
Second application for, after dismissal of first, 495.
Search warrant, 498.
Not proceeded with if appeal is pending, 498.
No discharge of prisoner without habeas corpus, 498.
Coroner's warrant, 498.
Ontario, new procedure In, 498.
British Columbia, procedure In, 499.
Quebec, jurisdiction in, 499.
Juvenile offenders, 499.
Convictions and warrants not void for irregularities, 499-504.
Powers of the Court in certiorari motions, 500.
Amending convictions on removal by, 501, 504-507.
Imposing less punishment, 502.
Imposing excessive punishment, 502, 504, 506.
Hearing appeal on merits, 502-504.
Court perusing depositions, 503, 504, 505, 506.
No fresh evidence taken, 503-506.
Weight of evidence not considered, 507, 508.
Costs against prosecutor, 508, 509.
676 INDEX.
Ckrtiorari — Continued.
Security by recognizance or deposit, when required, 509, 512.
Issue of warrant of commitment after, 512, 519.
Ontario, Rules in respecting, 510, 511, 518, 519, 522, 523.
Nova Scotia, Rules in respecting, 510, 511, 514, 524.
British Columbia, Rules in respecting, 510, 511, 518, 524-526.
Saskatchewan, Rules in respecting, 526-530.
Alberta, Rules in respecting, 533-536.
English Crown Office Rules, 512, 516.
Enforcing recognizance, 512-514.
Practice, Statute of 13 George II., 514-517.
Application for, must be made within six months, 515.
Six days' notice must be served, 515-517.
Affidavit of service of notice, 516.
Requisites of the notice, 517.
Affidavits verifying proceedings, 518, 519.
Return of the writ, or order, for, 519, 520.
Proceedings on Court's refusal to quash, 520.
" when conviction is quashed, 520, 521.
Conviction will not be set aside for defect in form, 521.
Convictions under Part XVI., 521.
Forms relating to certiorari, 596-602.
Challenge.
To the array, form of, 592.
poll, form of, 593.
Champerty Laws in Different Provinces, 36.
Child.
Capacity for crime, 43, 44.
Evidence of, 44, 204, 549.
Proof of age, 44.
Attempt to defile, 66.
CiTT Magistrates.
Jurisdiction of under sec. 777, 398-404.
Civil Action.
Certificate of dismissal of assault, bar to, 296.
Civil Remedy.
Not suspended, 36, 37.
Clerical Error, 266, 424.
Clerk of the Peace, 10, 12, 14, 230, 237.
Collateral Fact.
One witness sufficient, 72.
Colour of Right, Meaning of, 51.
Commencement.
Of prosecution, 114.
Commission.
To examine sick witness, 186, 187.
" " witness out of Canada, 192.
Forms as to, 607-609.
Commissioner.
Royal Northwest Mounted Police, 5.
To take evidence in foreign country, 192.
INDEX. '^t?
Commitment. • - '•; *
Warrant of, 223-225, 427. ■ " ' "" ' ^
Must be certain and definite, 427. ,. .. . ..'•-:
Amending a bad, 483, 484. ■'''■'- ■ • ^ '
On surrender by ball, form of, 614.
Of witness refusing to give evidence, 193, 194. (See Warrant).
For contempt of Court, 193, 194, 249, 250. - > • •';
For trial, 223, 224. :7. '.^^^ ?.^: •
Of absconding witness, 226. •:»• J .
For want of distress, 304-306. V ; ■; i -■
Common Assault. "'."_* •'••'''
(See Assault).
Common Bawdy House. ^
(See Bawdy House.) ,
Common Betting House. -
(See Betting House.) . . .-r
Common Gaming House. .r ---
(See Gaming House.)
Common Gaol, 237, 313. . , . ,j ,
Manitoba and B. C, 313. / '"
Common Law. . , ' "'
Jurisdiction as to crimes still in force, 1, 36, 39, 42.
Justification or excuse for crimes, 41, 42. ■ i :*. i". jk; *
Compensation. ■ -"' " ^
For loss sustained by offence, 436, 437.
To lona fide purchaser of stolen property, 437, 438.
Complaint.
(See Information), 114-138. ". ' .;
Dismissing, 294, form of, 576.
Certificate of dismissal of, 294, form of, 577.
Of person threatened, for sureties, form of, 582.
Forms of, 558, 559.
Compromise.
Proceedings on, 255, 256.
Compulsion.
Of wife, 52, 539, 540.
Confessions. •
And admissions, 214-220.
Confiscation.
Of moneys taken from prisoners, 436-441.
Consent to Prosecution.
Although necessary, need not be alleged, 132.
When necessary, 132.
Contents of, 287.
Conspiracy.
To commit indictable offence, 67-71.
Definition of, 67.
Indictment, 68-70.
Extradition for, 70.
Trade combine, 70, 71.
Corporations, 70.
678 INDEX.
Constable.
(See Arrest.)
Serving summons, 144, 148.
Assault upon, 149.
Executing warrant of arrest, 161-166, 556.
Using force in making arrest, 164-166, 556, 557.
Should have process with him, 162, 556.
Duties after arrest, 170, 171, 556.
Serving summons for witness, 186, 188.
Confessions made to, 217-220.
Fees under Part XV., 359.
Duties In executing warrant of commitment, 236.
Arresting without warrant, 555-557.
Receipt for prisoner by Justice, form of, 562.
" " gaoler, form of, 572.
Return to warrant of distress, form of, 580.
Forms of Inventory and appraisement, 616.
Using handcuffs, 163.
Searching gaming houses, 389-391.
constittjtional liaw and cases, 4, 5, 38.
Contempt of Court, 249, 250.
Conviction of witness for, form of, 564.
Conviction.
As a bar to further proceedings, 39-41.
Should be under seal, 92, 280.
Summary convictions. Part XV., 237-359.
Minute of, 269-272.
Drawing up, 272-276.
Defective, 267, 279, 285-288.
Must not charge disjunctively, 273.
" " in alternative, 273.
" be in respect of one offence, 134, 273, 275.
" specify particular act, 274-277.
Void for duplicity, 134, 274, 279.
" multifariousness, 275.
For vagrancy, 275, 276.
Description of offence in, 277, 278.
Sums and quantities must be specified, 278.
For several offences, 279.
Imposing wrong penalty, 285.
Names of several offenders must be specified in, 280.
Where improper names are given, 280.
Name and style of magistrate must be given, 281.
Time and place must be specified, 281.
Negativing exceptions, 253, 282-284, 325.
Exception by way of proviso, 283.
Forfeiture of penalty must be adjudged, 284, 285, 433.
Excessive penalty, 285.
Difference between orders and, 288-290.
By two justices of the peace, 290.
Of joint offenders, 291.
Copy for defendant, 295.
INDEX. 679
Conviction — Continued.
Costs on conviction made, 298-303,
dismissal, 303, 311.
Recovery of costs, 303, 304.
Warrant of distress, 305-307.
Quashing for irregularity, 301, 499-502.
Appeal from summary, 320-350. (See Summary Convictions),
by stated case, 350-358, forms, 610-613.
Enforcement of, after case stated, 358.
Want of form, not quashed for, 428.
If no substantial wrong, not quashed, 421.
Bad on its face, 490.
Amending on appeal by certiorari, 499-507.
Limitation of actions respecting, 551, 552.
Form of, for contempt, 564.
For penalty to be levied by distress, forms of, 572-574, 576.
" " and prison in default, form of, 573.
Repealed statute, under, 285, 286, 406.
By-law under, 288.
Release from first, on payment of damages. 291-294.
Punishment on convictions under sec. 773, 442-444,
Objections for matters of form, 342.
Quashing before action against magistrate, 91, 92.
" without proceeding by certiorari, 348, 349, 468, 469, 473,
483, 497.
" protection of magistrate from action, 472, 474, 482, 483.
For imprisonment only, form of, 573.
On Summary Trial, sec. 799, form of, 586.
" " plea of guilty, form of, 587.
Of juvenile offenders, form of, 588,
Removal by certiorari, 487-509,
Coroner.
Duties of, respecting inquisitions, 172-174,
Not "a Justice" within sec. 999, 173.
Warrant, form of, 617,
Corporations.
Summary convictions against, 150, 256.
Indictable offences, 150, 392.
Fine in lieu of prescribed punishment, 434.
Corroboration.
Required in treason, perjury, feigned marriage, forgery, &c., 71, 72.
Of evidence by Infants, 44, 204, 549.
Generally, 204, 205.
Corrupt Acts,
By justices, peace officers, etc., 106.
Costs.
Of action against justices of the peace, 101.
Security for, 13, 101, 102.
Of conviction, or order, 298-303.
Should be ordered to be paid to complainant, 303.
Excessive, 301, 302.
On dismissal, 303.
Recovery of, 304.
\iBO INDEX.
Costs — Continued.
Of conveying to gaol, 301-303,
Distress and commitment for, 311.
Payment of, 313.
Taxation of 300, 303.
On appeal, 349, 358.
Of prosecution In summary trials, 434-436.
Different modes of recovery, 434.
Imprisonment In default of payment of, 436.
In habeas corpus proceedings, 475, 484, 485.
" certiorari proceedings, 508, 509.
" " recognizance for, 509.
Counsel.
Exclusion from hearing, 195, 198, 199.
COUBT.
Meaning of. In Part XV., 237.
Trial, open Court, 248, 448.
Keeping order in, 248-250. '
Contempt of, 249, 250.
of General Sessions of the Peace, 398.
CotJNTS IN Indictment, 127, 128, 422. (See Indictment.)
What included in term, 116, 130.
Are divisible, 116, 117.
County.
What It includes, 237.
County Coubt.
Appeals to, 320-327.
Coubt of Appeal, 417-421.
Cbike.
Locality of, 86-89.
Limitation of time for prosecution of, 550, 551.
Criminal Infobmation.
Against justices of the peace, 102, 103.
Criminal Code.
Summary of its contents, 32, 33.
Procedure under, 1, 2, 32-53.
Application of, 34.
Criminal Charge.
What included in expression, 38.
Criminal Law of England.
Application of, to Ontario, 34.
Quebec, 35, 36.
Manitoba, 36.
British Columbia, 36.
Criminal Jurisdiction.
In Canada, 3, 4.
Criminal Intent, 47-51.
Criminal Responsibility.
Insane persons, 44-47.
Infants. 43, 44.
Wives, 52.
Criminating Questions, 543.
INDEX. d81
Cbown. '
Limitation as to debts to the, 243.
Practice rules respecting habeas corpus and certiorari, 51S-530,
533-536.
Practice rules as to stated cases in Saskatchewan, 531-533; •
Alberta, 536, 537.
Cumulative Punishment, 312, 313, 426.
Damages.
Payment of, on first conviction, 291-294.
Deaf Mutes.
Taking oath of, 205.
Evidence of, 205, 544.
Death of Justice, 151.
Death of Informant or Prosecutor, 151, 288, 334.
Deceased Witness.
Deposition of, 197, 213.
Defaulting Witness. -
Warrant for, 190, 191. Form of, 563.
Defects and Objections.
To informations, 133-138, 265-267.
" warrants, 133-138, 265-267.
" convictions, 133-138, 265-267, 273-276, 301.
Not to vitiate proceedings, 265-267, 301. )
Defence.
Witnesses for, 221.
Accused can make full answer and, 250, 448.
Defendant.
Proceedings on non-appearance of, 154-155, 253-255.
Waiving irregularity by appearance, 151-153.
Leaving court room during trial, 152.
Is admitted to make full answer, 250, 448.
Delirium Tremens, 46.
Description of Offence, 132, 265, 276-278.
Depositions, (See Evidence.)
Caption, or heading to, 207, 208.
Manner of taking, 207-210.
What they should contain, 208.
Must be read over and signed, 208, 211.
Connecting, 207.
Signature of justice to, 208.
When taken in shorthand, 209, 210.
Oath of stenographer, 210, 259.
Oath of interpreter, 209.
Witnesses for the defence, 221.
Copy of, who entitled to, 225.
Justice transmitting to Clerk of Peace, 230.
Need not be signed under Part XV., 258.
Nor taken in presence of accused, 258.
Authentication of, 209.
But must be in writing, 259.
Use of at trial in event of death, or illness, 213. ''^
Deserters. <hi
Arrest of suspected, 170. ■
682 INDEX.
Destructiox.
Of gaming Instruments, 390.
Of liquors, 365.
Detentiok^.
Persons arrested under section 652 not to be detained beyond noon
of following day, 555.
DiBECTOBY OB IMPEBATIVE REQUIBEMENTS OF CODE.
Taking statement of accused, 211, 212.
Reading over depositions, 259.
Justice signing depositions, 259.
Talcing down evidence in writing, 259.
Stenographer taking oath, 259.
Word " may " often means " shall," 262.
Provisions regulating appeals from summary convictions, 325.
Duties of justices as to stating cases, 353.
DiSCHABGE.
From gaol, 313, 317.
After preliminary inquiry, 178, 182.
DiSAOBEEMENT OF JUSTICES, 184.
DiSCBETION.
Rule as to exercise of, 241.
Judicial, to be based on evidence, 251.
Of Justices as to adjournment, 257.
Dismissal.
As a release, 37.
Order for, 183.
Of complaint, 184.
Certificate of, 294, 296.
Of charge by magistrate, 450.
Certificate of, 450.
Forms of, in summary convictions, 576, 577.
trials, 587, 588.
DiSOBDEBLT HOtTSE.
Keeping a, 388, 392-397, 443, 444.
Provincial legislation as to, iiltra vires, 38.
Punishment for keeping a, 443.
What included In, 388, 394.
Frequenting, 396.
Inmate of, 394.
Evidence to prove, 396.
House of Ill-fame, 393-396.
Gaming house, 388-393.
Opium joint, 388-391, 393.
Search In and warrant for, 389-391.
Powers of magistrate as to examination, 390.
Absolute jurisdiction of magistrate, 392-397,
DiSQUALIFICATIOir.
Of Magistrate and Justice by reason of interest, or bias, 77-82.
Distress.
Minute of order, before, 290, 294, 295.
Warrant of, 304-307, 309-313.
Insufficient, 306.
Backing warrant of, 305.
INDEX. 683
Distress — Continued.
For costs against prosecutor, 311, 312.
Forms relating to —
Bailiffs' inventory, 616.
Appraisement, 616.
Order for payment of money, 574.
Warrant, 577, 578, 581, 585.
Indorsement on, form of, 582.
District.
Meaning of, 237.
District Magistrates.
In Quebec, 15.
Documents.
Production of, 188.
Drunkenness, 45, 46.
Duplicity.
Conviction void for, 134, 274, 279.
Dwelling House.
Entering at night, 130.
Setting fire to a, 130.
Election.
Of accused on summary trial, 407-410.
Endorsement of Warrant.
(See Backing warrants), 167, 168.
Distress warrant, 305.
Forms for, 559, 582.
England, Criminal Law of. See Criminal Law of England.
Escape.
Pursuit of prisoner, 166, 555, 557.
Estoppel.
Because of civil action pending, 37.
Conviction operates as, 39, 40.
Estreat of Recognizance, 236.
Evidence. (See Depositions and Witnesses.)
Admissibility of, 208, 538-542.
Of child, 44, 204, 549.
Must support charge by material facts, 128, 268.
On preliminary inquiry, 178-184, 201-205.
On summary trials, 414.
Must be taken in presence of justice, 181, 201.
accused, 188, 201.
Taking of, under commission, 192, 193. Forms, 607-609.
To prove intent, 49, 421.
Of other similar acts to prove motive or intent, 541.
What facts are relevant, 194, 541, 542.
Production of documents, 188.
Nature of oath, 201-203.
Corroborative, when required, 71, 72, 204, 205, 549.
Taking through interpreter, 209.
by shorthand, 209, 210.
Statement of accused, 211-214.
Confessions and admissions, 214-220.
■584: INDEX.
Evidence — Continued.
Statements, part of the res gestw, admissible, 220.
Taking, In summary convictions, 257-259.
Deponent need not sign, 258.
Must be taken as required by law, 258, 259.
Competent witnesses, 538, 539.
Husband and wife, 206, 539, 540, 542.
Of accused himself, 539, 540, 541.
Cross-examination of accused, 540, 541.
Depositions at coroner's inquest, 172, 541.
" as evidence at trial on death of witness, 213.
Of co-defendants, 540, 541.
Marriage communications, 542.
Of deaf mutes, 205, 544.
Incriminating questions, 543.
Foreign, expert, and adverse witnesses, 544-546.
Handwriting, proof of, 545.
Impeaching witnesses, 546.
Cross-examination as to previous statements and convictions, 547,
548.
Oaths and affirmations, 548, 549.
Judicial notice, 406, 549.
Evidence Act, 201, 203-205, 538-549.
Examination.
Of witnesses on preliminary inquiry, 181, 201-205.
" " summary convictions, 257-259.
trials, 414.
Exceptions and Pbovisoes.
Negativing, 253, 282-284, 325.
Excessive Force.
In making arrests, 164, 556, 557.
Excessive Punishment. See Punishment.
Exclusion.
Of persons from hearing, 198, 199.
" witnesses from hearing, 206, 264.
Execution.
Of warrant of arrest, 161-166.
Using force in execution of warrant, 163-165, 556, 557.
EX-OFFICIO.
Justices of the Peace, who are, 5.
Ex Pakte.
Proceeding on non-appearance of defendant, 246, 254.
Expenses.
Of prosecution, 434.
Extradition.
Bail in, 234.
Habeas corpus proceedings in, 467, 468, 470, 475, 478.
Facts.
Necessary to be set out in indictments, 128-131.
" " support charge, evidence of, 128.
Relevant, what are, 194, 541, 542.
False Name. (See Name.)
INDEX. 685
False Pretences.
Information for, 120.
Summary trial for, 383, 440, 442.
Fees in Summary Conviction Cases..
To constables, 359.
To interpreters, 359.
To justices, 13, 358, 359.
To witnesses, 359.
Fees.
Exaction of unauthorized, by magistrates, 105, 106, 107.
None payable to magistrate on preliminary inquiry, 182.
In summary trial cases, 435.
Felony and Misdemeanour.
Distinction between abolished, 2, 38, 114.
Fences.
Question as to line, 83.
Fieri Facias.
Form of writ of, 594.
Fines.
If no mode prescribed for recovery, may be recovered by civil ac-
tion—Sec. 1038—434.
Fines and Forfeitures, 284, 285, 433.
In discretion of the Court, 307, 433.
Payment and discharge, 313.
In lieu of imprisonment, 434.
Corporations may be fined, 434.
Fibst Offenders.
First conviction and payment of damages, 291-294.
Suspending sentence, .429-431.
Force.
Constable may use reasonable in making arrests, 163, 164, 556, 557.
Forcible Entry, 130, 548.
Forcibly Preventing.
Breach of peace, 557. • '
Commission of crime, 555.
Escape from or after arrest, 557.
Foreigners.
Evidence given by, 201, 202, 544.
Forfeiture.
Of penalty must be adjudged in the conviction, 284, 285, 433. '
Former Conviction, 429-431.
Forms.
Statutory under the Code, 1 to 76, 558-595.
Appendix " A."
In certiorari proceedings, 596-602.
" habeas corpus proceedings, 603-607.
" evidence under commission, 607-609.
Witness dangerously ill, 607, 608.
out of Canada, 609.
Stating case under sec. 761, 610-613.
Apprehension of person on bail, 613.
Commitment on surrender by bail, 614.
686 INDEX.
Forms — Continued.
Application for subpoena for witness in Canada out of the Pro-
vince, 615.
Affidavit of service of subpoena, 616.
Proceedings under distress warrant
Bailiff's inventory, 616.
" appraisement, 616.
" notice of sale, 617.
Coroner's warrant, 617.
Appendix "B."
Statements of offences in numerical order with the sections of
the Criminal Code, 618-668.
Fkequenting.
Bawdy houses, 392-394.
(See Vagrants.)
FuornvE Offenders.
Habeas corpus as to, 475.
Functus Officio.
Magistrate is, after committal, 224, 230.
Gaming House. (See Disorderly House.)
Searching by officers, 389-391.
Examination of persons found in, 390,
Prima facie evidence of, 391.
Destruction of instruments, 390.
Gaol.
Meaning of, 237.
Costs of conveying prisoner to, 300-303.
Commitment to, 300, 313, 427.
In Manitoba and British Columbia, 313, 427.
Gaspe District.
Naval officers ex officio Justices of the Peace in, 14.
Girls.
Searching for in house of ill-fame, 389.
Good in Part and Bad in Part.
Convictions cannot be, 290.
Orders may be, 290.
Goods.
Restitution of stolen, 438-441.
Greetous Bodily Harm, 383.
Guilty.
Plea of, 260.
Form of conviction on plea of, 588, 589.
Habeas Corpus.
Origin of the writ, 456.
Ad testificandum, 456.
Ad subjiciendum, 456, 457.
Introduction into Canada, 457.
Statute of Charles II., 457.
George III., 457, 458.
Supreme Court of Canada, jurisdiction in, 458, 459.
Practice and procedure respecting, 460-463.
Affidavit on application for, 460, 461, 462.
INDEX. 687
Habeas Corpus — Continued.
Application for, how made, 461, 462, 463.
Any stranger may apply, 462.
Married women and minors entitled to, 463.
Direction and service of writ, 463, 464.
How writ signed, marked and issued, 464.
Return to be made to the writ of, 465, 466, 468.
Impeaching the return, 466.
Original warrant of commitment required, 468.
Recognizance on remand, 467.
Quebec, practice in, 467, 474, 476, 480.
Amending return to, 468, 469.
Not sufficient to quash conviction without certiorari, 468, 469, 473,
483, 497.
Will not lie after appeal from summary conviction, 469.
Fresh arrest pending proceedings, 470.
In extradition proceedings, 467, 470, 473, 475, 478, 479.
Is not an appeal, 471.
Discharge without actual issue of writ, 471.
As to County Judges Criminal Courts, 471, 472.
" magistrates in cities, 472, 483, 484.
Discharge of prisoners upon, 472, 473.
Discharge generally no bar to further prosecution, 473.
Order protecting gaoler and magistrate, 472, 474.
Applications to successive Judges, 474.
Appeal from Judge's order, 474, 479, 480.
In relation to fugitive offenders, 475.
Extradition proceedings, bail in, 475.
Costs against stranger to proceedings, 475.
Necessary before release of prisoner, although conviction bad, 424.
Cases on jurisdiction and practice generally, 476-478, 481, 482.
Ontario, practice in, respecting, 480.
Detention of prisoner after application for, 480.
Amending bad commitment on, 481, 483, 484.
Certiorari in aid of, 482, 484.
Order protecting magistrate, 482, 483.
Will lie after conviction on summary trial, 396, 404.
Arrest on telegram, 160, 470, 483.
Acting magistrate, 484.
Costs of proceedings, 484, 485.
Irregularities in application for, 485.
New Brunswick, jurisdiction in, 485, 518.
Nova Scotia, jurisdiction in, 485, 518.
Manitoba, jurisdiction in, 458.
Saskatchewan, jurisdiction in, 458, 486, 528.
Alberta, jurisdiction in, 458, 486, 535.
British Columbia, jurisdiction in, 458, 518.
Yukon Territory, jurisdiction in, 458.
North-West Territories, 458.
Handcuffing.
Prisoner on arrest, 163.
688 INDEX.
Handwriting.
Accused not required to furnish specimen, 212, 545, 546.
Proof of, 545.
Hard Labour,
Adjudging on conviction, 305, 308.
Imprisonment with, 308, 425.
High Seas.
Admiralty jurisdiction on, 169.
Offences committed on, 169.
Hoodats.
Statutory, Sundays, etc., 167.
Warrants may issue and be executed on, 161, 162, 167.
Information may be taken on, 167.
House.
Ehitering to make arrests, 164-166.
Breaking into, description of, required in informations and indict-
ments, 130.
Of ill-fame. (See Disorderly House.)
Bawdy. (See Disorderly House.)
Husband and Wife.
Compulsion of wife, 52, 539.
Crime committed in husband's presence, 52.
Protection of wife, 52.
Wife as accessory, 52, 62, 63. (See Evidence.)
Idiocy, 44-47.
Ignorance of the Law.
Is no excuse, 49, 53.
Ill-fame.
House of. (See Disorderly House.)
Imprisonment.
In default of payment or distress, 304, 305, 307.
In the first instance, 308.
With hard labour, 308, 425.
In addition to fine, 309.
Cumulative punishment, 312, 313, 426.
In penitentiary, 426, 427.
" common gaol, 300, 313, 427.
" reformatory, 427.
(See Gaol.) (See Punishment.)
Inciting Witness to Give Desired Evidence, 42.
Indecent Assaults, 383, 443.
Indians.
Selling liquor to, 51. -•
Indictable Offences, 2.
Triable on summary conviction, 114.
Distinction between, and offences on summary conviction, 116,
On non-appearance of accused, trial cannot go on, 154.
Summary trials of, 380-453.
Indictment.
Stating time of offence in, 127, 130.
Stating place of offence in, 128-131.
Provision as to counts in, 127, 128, 415, 422.
INDEX. 689
Indictment — Continued.
What counts in, should contain, 127, 128, 129, 135.
Count and, include information, 116, 130.
Must allege all essential ingredients of offence, 135.
For common assault, 295.
Headings, forms of, 590.
Examples of stating offences, 590, 616-668.
Certificate of being found, form of, 591.
Infants. (See Child.)
Sections 17 and 18 of the Code, 43, 44.
Evidence by, 44, 204, 549.
Corroboration required, 44, 204, 549.
Proof of age, 44.
Responsibility of, 43, 44.
Infoemation and Complaint.
Distinction between, 114.
Is groundwork of conviction, 114, 117.
In indictable offences, 114-138.
" summary convictions, 115, 238, 242, 243. ^
Must be under oath for warrant to issue, 115, 149, 156.
Discretion of justice as to receiving, 115.
" Count " includes information, 116, 117, 130.
" Charge " includes information, 116, 117. l(|i
In nature of indictment, 117, 130.
Laying of, 117, 142-144, 167, 238, 245, 246.
Who may be informant, 117. —
Required contents of, 117, 185, 245, 246.
Must be in writing and under oath, 118.
Waiver of, on preliminary inquiry, 119, 151.
For false pretences, 120.
Legal construction of language of, 120.
What it should contain, 120-138.
Name and occupation of informant, 121. '-^
Day, year and place where taken, 122.
Taking of is a judicial act, 123, 125, 167.
Description of justice receiving, 125.
Name of offender must be stated in, 126, 157, 185.
Place and time of commission of offence, 126, 127, 129-131.
Statement of the offence, 132, 133-138.
Duplicity in, 134.
^ Defects in and objections to, 133-138, 265.
Particulars, furnishing of, 118, 133, 184, 415, 416.
• . More than one offence not to be charged in, 133, 134, 135, 251.
Charging several matters in the alternative, 134, 185, 186, 246.
Concise and legal description required in, 135.
Essential ingredients constituting offence, 133, 135-138.
Complaint on information and belief, 144.
Receiving, 142-144.
May be laid on Sunday, or statutory holiday, 167.
Variance between warrants and, 185.
Amendments to, 122, 134, 185, 245, 246, 255.
c.c.p. — 44
690 index::
Information and Complaint — Continued.
Limitation of time for laying, in summary convictions, 243, 551.
Exceptions and exemptions in summary convictions, 253, 282-284,
325.
Forms of:
To obtain search warrant, 558.
For an indictable offence, 559.
Order dismissing, 576.
Certificate of dismissal, 577.
Statements of offences in, see Forms, Appendix " B," 618-668.
Vagrancy, for, forms of, 629.
Inland Lakes.
Offences on, 132.
Admiralty jurisdiction over, 132, 169.
Inquiry.
Preliminary, in indictable offences, 176-236.
Inquisition.
Coroners, 172-174.
Insanity.
Code, section 191, 44-47.
Intoxication, 45, 46.
Delirium tremens, 46. ' . .■
Remand by magistrate, 47, 184, 195; '
Medical testimony, 46, 47. >
As a defence, 46, 47.
Duty of grand jury respecting, 46.
Intent.
Mens rea, 47.
When necessary to prove, 48.
Statutes dispensing -with proof of, 48.
Of servant not imputed to master, 48.
In bigamy cases, 49.
Evidence of similar acts to prove, 49, 421.
But not to prove propensity to crime, 49.
Fraudulent packing of apples, 49.
" Knowingly " implies mens rea, 49.
Sale of liquor to interdict, 50.
Omission to perform a statutory duty, 50.
Colour of right, meaning of, 51.
Verdict of guilty without, 50, 423.
Interpreter.
Competency of, 424, 544, 545.
Should be sworn, 209.
Oath of, 209.
Fees under Part XV. of the Code, 359.
Intoxication, 45, 46.
Irregularity.
Waiver of. In information, 151.
Summons, warrant, etc., 152, 153.
And variances in warrant, etc., 185, 265, 266.
In conviction, quashing for, 301, 499-502.
INDEX. 691
Joint Offenders.
Conviction of, 244, 291.
Partners as, 291.
Judgment. (See Adjudication.)
Not to be given without proof of facts under oath, 267-269.
Judges.
Appointment of, 3.
Of Superior Courts, 3.
Of County Courts, 3.
Of Probate in N. B. and N. S., 3. ^__^
Of Supreme Court of Canada, 3. -J. — ——r"'^
De facto, 9.
JUT)iciAL Discretion, 251, 262.
Judicial Acts.
Of justices of the peace, 73, 74, 90, 123, 125, 144, 167.
Judicial Notice.
Of Acts of Parliament, 549.
Of census returns, 406.
Jurisdiction.
Of police magistrates, 75, 76.
Of justices of the peace, 73-76, 238-242.
Ministerial acts, 74, 125, 299, 428.
Judicial acts, 73, 74, 90, 123, 125, 144, 167.
Cases when not acquired by magistrates, 120, 140, 142, 146, 147, 148,
152, 155, 159, 238.
Does not depend on truth of complaint, j.43.
Must appear on face of proceedings, 129.
Generally, 73-89.
Provisions of Code as to, 125, 126.
Magistrate acting without, 124.
Magistrate acting in excess of, 123.
Police Magistrate of one town acting for P. M. of another town, 75.
When magistrate called as witness in the case, 76.
To proceed when arrest illegal, 119, 120, 159, 238, 252.
Of admiralty on inland lakes, 132.
" justices where offence committed on tidal, or other waters, or
bridges, or boundaries of counties, or towns, 131, 132.
A sufficient information gives, 141.
Justice in absence of accused has none, unless summons served,
153, 154.
Offences committed out of, 131, 169, 171, 172.
In Summary Convictions, Part XV., 238-242.
" Trials, Part XVI., 383-387, 392-406.
Of general and quarter sessions, 402.
Jury.
Challenge to array, form of, 592.
poll, form of, 593.
Justices of the Peace.
Appointment of, 5.
Creation of office of, 6.
In England, 6.
Property qualification of, 6, 7.
Other qualifications, 75.
693 INDEX.
Justices of the Peace — Continued.
Ontario, in, 8-13.
Oath of office, 8.
qualification, 8, 75.
" allegiance, 9.
Returns by, 10.
Vexatious actions against, 12.
Security for costs in, 13.
Fees to be charged by, 13, 358, 359.
Quebec, in, 13-16.
Oath of office, 14.
Oath of qualification, 14, 75.
Appointment of, 13, 14.
Jurisdiction of naval officers, 14.
" " justices over whole Province, 14.
To keep registers, 14.
" make quarterly returns, 14.
Nova Scotia, in, 16, 17.
New Brunswick, in, 18.
Prince Edward Island, in, 19.
British Columbia, in, 19, 20.
Manitoba, in, 21-23, 75.
Saskatchewan, in, 24, 25.
Alberta, 26, 27.
North-West Territory, 27, 28.
Yukon Territory, 28, 29.
Unorganized Territory, 29. :
Royal North-West Mounted Police, as, 30.
Oath of allegiance, 30.
Jurisdiction of. See Jurisdiction.
Territorial limits, 73, 125, 131, 169, 239, 240.
Ministerial acts, 74, 125, 299, 428.
Judicial acts. 73, 74, 90, 123, 125, 144, 167.
Two justices, 74, 76, 238-241.
-^ When one justice may act, 42, 125, 238, 241.
Sitting in absence of police magistrate, 75, 85.
Acts of, when not qualified, 75.
Single, asking others to sit with him, 84.
Disqualification of, by bias or interest, 77-82.
Ouster of jurisdiction, title to land, 82-84, 241, 242.
Associate justices and priority, 84-86, 184.
Interference by outside justices, 84, 85, 184.
Authority to two cannot be exercised by one, 76.
Two justices should be present throughout the hearing, 86, 184,
196, 240, 241.
Responsibility of, 90-113.
Vexatious actions against, 12. 23, 91-102.
Excess of jurisdiction, 91, 123.
Issuing warrant without jurisdiction, 93.
Protection of. 94. 428. 429, 482, 483.
Powers as to preserving order in court. 248-250.
Compelling performance of duties, 95, 96, 107-110. 141, 177.
Time limitation for actions against, 97, 551, 552.
INDEX, 693
Justices of the Peace — Continued.
Notice of action, 97-100.
Tender of amends, 101, 551, 552. f
Costs of action, 101.
Security for costs, 101, 102.
Criminal information against, 102, 103.
Return of convictions, 103-105. Form of, 594.
Unauthorized fees, talking, 106, 107.
Corrupt action on part of, 106.
Mandamus and prohibition against, 107-113.
Meaning of word " Justice," 106, 107.
No fees to be charged by, in indictable offences, 107.
Description of, should appear In information, 125.
Tidal and other waters, jurisdiction on, 131.
Duty to hear witnesses before issuing warrant, 143, 144.
May exercise discretion as to issuing warrant, 143, 144.
Duties on preliminary inquiry. See Preliminary Inquiry.
Summary Convictions, Part XV. See Summary Convictions.
Summary Trials of indictable offences by magistrate, or two jus-
tices. See Summary Trials.
Justification or Excuse, Matters of, 41, 42.
Juvenile Offenders, 453-455.
Keep the Peace.
Sureties to, 314-319, 441, 442.
Knowingly.
Omission of word when necessary is fatal, 508.
Intent, mens rea, 47-50.
Labour Day.
Statutory holiday, 167.
Lakes.
Inland, offences committed on, 132.
Admiralty, jurisdiction over, 132, 169.
Land.
Title to, in question, 82-84, 241, 242.
Larceny.
Term no longer used, 2.
Law.
Ignorance of, no excuse, 53.
Letters.
Threatening to burn or destroy building, 317.
Limitation of Actions.
Against officials, 551, 552.
For penalties, 551, 552.
Limitation of Time.
For commencing prosecutions of criminal offences, 123, 124, 550,
551.
In summary convictions, 123, 124, 243, 551.
Amending information after expiration of time limited, 122.
Liquor License Acts, Cases Under.
Amendment of convictions, 360, 361.
" Informations, 360, 361.
Amount of fine, 361.
Brewer's license, 361.
694 INDEX,
LiQUOB License Acts, Cases Under — Continued.
Certiorari, 361, 362.
Deposit as security in, 362.
Change of territory under Canada Temperance Act, 362.
Clubs, 362.
Concurrent legislative powers, 362.
Conviction for second or third offence, 363.
Proof of previous conviction, 363-365.
Destruction of liquors, 365.
Evidence, 365-367.
Hotel not a public place, 367.
Illegal disposition of liquor, 367.
Imprisonment on default, 367.
Information, sufficiency of, 368.
Keeping liquor for sale, 367, 368.
Limitation of time for prosecution, 368.
Manitoba, prosecutions in, for second and third offences, 363.
Minors, sale to, 368, 369.
Occupant of premises, liability of, 369.
Physicians, sales by, 369.
Place of offence, 369, 370.
Previous conviction, 363-365.
Restaurant keeper procuring liquor for guest, 370.
Sale or disposal, what amounts to, ' 370.
Sale In larger quantities than license permits, 371.
Sale in Local Option district, 371.
Sale of sacramental wine, 371.
Sale on a doctor's certificate, 371.
Search warrant, 371, 372.
Summons as for second offence, 372.
Suspending sentence, 372.
Two bars, 372.
Uncertainty as to date of offence, 373.
Locality.
Of crime or offence, 86-89, 128-131.
Local Desceiption.
Required to be set out in information or indictment, in certain of-
fences, 128-131.
Loose, Idle and Disorderly Person. (See Vagrant.)
Lord's Day Acts. See Sunday Observance Laws.
Lunacy. (See Insanity.)
Magistrates. (See Justices of the Peace and Police and Stipendiary
Magistrates. )
Appointment of, 5-29.
meaning of "magistrate" in the different Provinces, 381, 382.
Jurisdiction absolute in certain Provinces and Territories over
certain offences, 397.
Compelling performance of duties, 95, 96, 107-110, 141, 177.
Disqualification by bias, or Interest, 77-82.
Vexatious actions against, 12, 23, 91-102.
Returns of convictions by, 103-105.
Mandamus and prohibition against, 107-113, 141.
Preliminary inquiry, duties in. See Preliminary Inquiry.
INDEX. 695
Magistrates — Continued.
Summary trials. See Summary Trials.
Jurisdiction of. See also Jurisdiction.
Jurisdiction absolute in offences respecting disorderly houses, 392-
396.
Seafaring persons, 397.
Order protecting on quashing conviction, 482, 483.
Maintenance.
Indictable in Ontario, 36.
Malice and Maliciously.
Use of Words, discontinued, 2.
Mandamus.
Compelling performance of duties by magistrate, 95, 96, 107-110,
141, 177, 195.
Writ of, abolished in Ontario and Manitoba, 107.
To have appeal reopened, 505.
Manitoba.
Justices of the Peace and Magistrates in, 21-24, 381, 382.
Gaols in, 313, 427.
Criminal Law of England in, 36.
Application of Criminal Code in, 23.
Liquor License law in, 363.
Recovery of fines and penalties in, 23.
Market Overt.
Sale of stolen property in, 439, 440.
Master and Servant, 95.
Married Woman. (See Husband and Wife.)
Conviction of, 244.
Meetings.
Unlawful assemblies, 55-56.
Riots, 56-58.
Meks Rea.
Intent, " knowingly," " wilfully," 47-51.
Mercy.
Royal prerogative of, 309.
Ministerial Acts.
Of justices, 74, 125, 299, 428.
Minors. (See Infants.)
Minute of Conviction, 269-272, 343, 404.
Minute of Order.
To be served, 294, 295.
Mischief.
Title to land in question, 83, 84.
Misdemeanour and Felony.
Distinction between abolished, 2, 38, 114.
Mistake in Name of Offender, 157, 185, 280, 281, 473.
Motion. (See Appeal — Habeas Corpus and Certiorari.)
Multifariousness.
Conviction bad for, 275.
Name.
If not known, describe person, 126, 280.
Of party to be arrested should appear in warrant, 156, 157.
Of person injured, 126, 137.
696 INDEX.
Name — Continued.
Mistake in name, 157, 185, 280, 281, 473.
Of several offenders must be specified in conviction, 280.
Improper, given by offender, 280.
And style of magistrate must be specified in conviction, 281.
Naval Officebs.
Ex-offlcio Justices of the Peace, 14.
May arrest without warrant, 555.
Negattvikg.
Exceptions and provisos, 282-284, 325.
New Brunswick.
Actions against justices in, 101.
Justices of the Peace and Magistrates in, 18.
Jurisdiction of Courts in habeas corpus, 485, 518.
New Trial.
Application for, after conviction, 418-420.
By order of Minister of Justice, 421.
Night.
Arrests for offences committed in, 555, 556.
Non-appearance of Accused.
On proof of service of summons, warrant may issue, 154.
Justice cannot proceed with preliminary inquiry on, 154.
Does not affect proceedings in summary conviction trials, 154, 253-
255. 258, 262.
When he is on ball, 261.
Non-appearance of Prosecutor, 255, 261.
Nobth-West Mounted Police.
As Justices of the Peace, 30.
North-West Territories.
Act relating to, 27, 28.
Magistrates, in, 28.
Justices of the Peace, in, 27-28.
Not Guilty.
Plea of and request for adjournment, 262.
Notice,
Of actions against Justices, 97-100, 551.
" appeal, 329-334.
" application for certiorari, 488, 515-517.
Nova Scotia.
Justices of the Peace and Magistrates in, 16, 17.
Jurisdiction in habeas corpus, 485, 518.
Certiorari. Rules as to, 514, 518, 524.
Oath.
Of allegiance, 9, 31.
Evidence taken under, 201.
Administering, 201-203.
Mohammedans, 201.
Chinese, 201, 202.
Ruthenlans, Poles, etc., 202.
Affirmation In lien of, 203, 548, 549.
Evidence of child without, 44, 203, 204, 549.
Persons who have no religious belief, 205, 206.
INDEX. 697
Oath — Continued.
Children taking, 549.
Information under, before warrant can issue, 115, 149, 156.
Objections and Defects.
As to informations, warrants and convictions, 133-138, 265-267,
273-276, 290.
As to variances in information, 265-267.
Objections at Trial.
Waiver of, 155, 159, 238, 252, .257, 266, 342, 352.
Offenders.
Names of, should appear in informations for all offences, 126.
Names of, should appear in conviction, 280.
Offences.
Against the rights of property, 241, 242.
Less included in greater, 117.
Jurisdiction as to trial of, in summary convictions, 131, 132, 238-
242.
Conviction must be in respect of one, 134, 275, 279.
Continuous acts treated as one offence in law, 279, 282.
Punishable under different Acts, 39.
Parties to, 58, 59, 280.
Locality of, 86-89.
Time or date of commission of, to be stated, 126, 127, 130,
Should be stated with particularity, 133, 135, 137, 138.
On waters and high seas, 131, 169.
Committed out of jurisdiction of Justice, 171, 172.
Information charging two, 245, 246, 251.
Description of, in words of statute, 127, 132, 265, 276-278.
Must not be charged disjunctively or in the alternative, 273.
Conviction for two offences is bad, 279.
Statements of, forms of. Appendix " B," 618-668.
Officers.
In army and navy may arrest without warrant, 555.
Omission.
To perform statutory duty, 50.
Ontario.
Actions against justices in, 12.
Justices of the Peace and Magistrates in, 8-13, 381, 382, 399, 400.
Criminal Law of England in, 34.
Certiorari, rules as to, 510, 511, 518, 519, 522, 523.
Opium Joints.
Search and seizure in 389, 391. (See Disorderly House.)
Orders.
Difference between convictions and, 288-290.
Minute of, to be served on defendant, 294, 295.
May be good in part and bad in part, 290.
Refusal to obey, indictable at common law, 290.
Forms of —
Discharging witness, 570.
For payment of money and in default distress, 574.
" " " imprisonment, 575.
For other matters punishable by imprisonment, 575.
Dismissing complaint, 576.
^98 INDEX.
OUSTEB.
Of jurisdiction by question of title to land, 82, 83, 241; 242.
" ** " claim of right to do the act, 84 '••''•• =
Pabticulabs. '■/./. «"»io".
Order for, 118, 184.
In summary trials, 415, 416.
Statement of, In summons, 152.
Pabticxtlab Act Committed.
Conviction must specify, 273-278.
Information must specify, 265.
Pabties to Offences, 58, 59, 280.
Payment of Pabt of Sum Adjudged bt Conviction, 94, 311.
Peace.
Breaches of, 53, 557.
Sureties to keep the, 314-320, 441, 442.
Peace Offices. (See Constable.)
Definition of term, 107.
Penalty.
Share of person suing, 105.
Imposing wrong, 279.
Forfeiture of, must be adjudged in conviction, 284, 285, 433.
Must be sued for in 2 years, 551.
Penitentiaby.
Commitment to, 426, 427.
Peejuby.
Warrant of arrest for, 160.
Place.
Where information taken should be stated, 122.
Jurisdiction of Magistrate confined to, 125.
Evidence as to, 128, 129.
Judicial notice of local geography, 129.
Venue, 130.
Where offence committed, 126, 127.
Exceptions to general rule as to the statement of time and place
in indictments, 130, 131.
Plea.
Of guilty, effect of, 260,
" guilty by solicitor, or counsel, 152, 255, 257.
" not guilty, 262.
Appeal after plea of guilty, 321, 322, 326, 344.
Police Magisteate. (See Magistrate and Justice of the Peace.)
In Ontario, 10. 11, 12, 13.
" Quebec, 15.
" New Brunswick, 18.
" Nova Scotia, 17.
" British Columbia, 19, 20.
" Manitoba, 21-23,
" Saskatchewan, 24, 25.
" Alberta, 26. 27.
" Yukon Territory, 28, 29.
INDEX. 699
Powers of Justices and Magistrates. : -" •■ -.:-.;•'
On preliminary inquiry, 195-197. -' ."'■'•■■•••*?■
" summary conviction, 248-250.
In summary trials, 381-406.
Preliminary Inquiry, Part XIV. of the Code.
Cannot proceed in absence of accused, 154.
" be held on Sunday, or statutory holiday, 167.
Procuring attendance of a prisoner at, 169.
witnesses at, 176, 186, 189-192. See Wit-
nesses.
Summons for witness, contents of, 188.
Production of documents at, 188.
Duties of Justices and Magistrates respecting, 176-229.
Procedure on appearance of accused, 177-185.
" when offence committed outside of jurisdiction of
justice, 171, 172. " ,
Accused must be present, 177.
Summary conviction cannot follow, 177, 178, 180, 182, 198, 297.
Evidence to be taken on oath, 180, 181, 200.
Charge against corporation, 178.
Duty of justice at close of, 178, 180, 182, 183, 221, 222.
No fees to magistrate on, 182.
Evidence must be taken in presence of justices, 181.
accused, 181, 198, 207.
If accused is discharged he may be re-arrested, 182.
J^ Difference between trial and, 178, 179, 182, 183.
Disagreement of justices, 184.
— Non-interference by other justices, 184, 185.
Particulars, order for, 184.
Adjournment of inquiry, 184.
Irregularities and variances, 185.
Taking evidence of sick or infirm people, 187, 188.
" " on commission, 192, 193.
Powers of justices, 195-198.
Remanding accused, 195-198.
Bail on remand, 199, 200.
Same justices must act throughout, 196, 197.
* Decision of justices after hearing, 197-199.
Commitment for trial, 179, 197.
Dismissal of complaint, 183, 197.
Exclusion of persons from Court room, 198.
counsel, 198, 199, 207.
" private prosecutor, 199.
Affidavit of stenographer, 210.
Depositions, mode of taking, 207-210.
" taken in shorthand, 210.
" reading over, 211.
" signing, 211.
Statement of accused, 211-214.
Evidence for the defence, 221.
Adjudication, 221, 222.
Discharge of accused, 222.
Committing accused, 222-225.
700 INDEX.
Pbeliminaby Inquiry — Continued.
Prosecutor, binding over, 222, 223.
Depositions, copy for accused, 225.
Recognizance to prosecute, 225, 226.
give evidence, 225, 226.
Warrant for absconding witness, 226, 227, form of, 565.
Transmission of papers to clerlt of trial court, 227, 228.
Bail under sec. 696 of the Code, 178, 227-229.
" after committal, 178, 229-235.
Order for bail by Judge, 235.
Warrant of deliverance, 235.
Person bailed absconding, 235.
Delivery of accused to gaoler, 236.
Estreat of recognizance, 236.
Waiver of, 180, 181.
Preliminary Objection, 257.
Preserving Order in Court.
Powers of Police Magistrates as to, 248, 249.
" Justices as to, 249, 250.
Previous Conviction.
On suspended sentence, 429-431.
Proof of, 431.
Prince Edward Island.
Justices of the Peace and Magistrates in, 19.
Principal.
And accessories, distinction abolished, 59.
Prison. (See Gaol.)
Meaning of, 237.
Prlsoner.
Removal of, from gaol to be brought before justice, 169.
Warrant remanding, form of, 566.
" of deliverance on bail, form of, 572.
Private Prosecutor.
Right to be heard, 199,
Appeal by, 419.
Right to certiorari, 491.
Procedendo.
Writ of, not now required, 520.
Procedure. (See Appeal — Indictment — Preliminary Inquiry — Sum-
mary Convictions — Summary Trials — Habeas Corpus —
Certiorari.)
Proceedings.
Certain defects in, not to vitiate. 265-267, 301.
On preliminary inquiry. Part XIV., 176-236.
" summary convictions. Part XV., 237-359.
trials. Part XVI., 380-455.
After conviction. (See Commitment.)
Production of Documents, 188.
Prohibition, 110-113.
Proof.
Of age of infant, 44.
" previous conviction, 431, 433.
IJ^DEX. 701
Property.
Injured, must be specified in conviction, 274.
Restitution of stolen, 438-441.
Compensation to purchaser of stolen property, 437, 438.
for loss of, 436, 437.
As to what "property" includes, sec 2 (32) of the Code, 438.
Prosecutor.
Evidence for, 207-210.
Binding over, 222, 223. . -•
Non-appearance of, 255, 256. •,-
Private, 199, 419, 491.
Prosecution of Crimes. When to be commenced.
Laying of the information is the commencement of, 123.
Indictable offences, 550, 551.
Summary convictions, 551.
Penalties or forfeiture, 551.
Public Meetings. (See Assembly.)
Public Officer.
Definition of expression, 107.
Punishment.
Fines, sees. 1026-1085 of the Code, 433, 434.
Not twice for same offence, 40.
At common law, 40.
Only after conviction, 288, 423.
Degrees of, 307, 424-426.
Cumulative, 312, 426.
Imprisonment at hard labour, 305, 308, 425.
On conviction under sec. 773, 442-444.
For keeping disorderly house, 443, 444.
Suspended sentence, 429, 430.
Sentence too long, 287, 298, 308, 427, 502, 506.
short, 287, 288, 502.
Pursuit.
Of escaping prisoners, 166, 555, 556, 557.
Qualification.
Of Justices of the Peace, 7.
Oath of, 7, 8.
Quashing Conviction. (See Conviction.)
Quebec, Province of.
Quebec Act, 35.
Constitutional Act, 35.
Criminal Law of England in, 35.
Justices of the Peace and Magistrates in, 13-16, 75.
Certiorari, jurisdiction of Courts in, 496, 497.
Habeas corpus, jurisdiction of Courts in, 467, 474, 476, 480.
Magistrates' jurisdiction in summary trials, 381, 399, 400.
Question.
Of title to land, 82-84, 241, 242.
Qui Tam Actions.
For not making returns, 103-105.
Rape.
Attempt to commit, 65.
702 INDEX.
Receipts.
From Justice to constable for prisoner, form of, 562.
" gaoler to constable for prisoner, form of, 572.
Receiving.
Stolen goods, 383, 398.
Recorders.
In Quebec, 16.
Recognizance. (See Bail.)
Render by sureties, 231.
Binding over prosecutor, 225.
To prosecute after preliminary inquiry, 225.
Binding witness to give evidence, 225.
May be taken on Sunday, 226.
How to be signed, 226, 320.
Under sec. 696 of the Code, 227-229.
After committal for trial, 229-235.
Order for bail by Judge, 235.
Manner of taking a, 320.
Discharge of, 320.
Estreat of, 236.
To keep the peace, 314-319, 441, 442.
On appeal from conviction, 334-337.
" appeal by stated case, 354, 355;
" certiorari proceedings, 488, 491, 509-512.
Forms of —
Bail on remand, 566.
Prosecutor to prosecute, 568, 569.
To prosecute and give evidence, 569, 570.
Bail under sec. 696, 571.
To keep the peace, 583.
" try appeal, 584.
Recovery of Costs, 304, 311, 313, 314.
Record.
Of proceedings in summary conviction cases must be kept, 261.
Release.
From further proceedings, 309, 450.
Relevant Facts.
What are, 194, 541, 542.
Religion.
Offences against, forms of indictments, 624, 625.
Rekand.
By justices in preliminary inquiry, 195, 197, 198-200.
Bail on, 198, 199, 200, 264.
Noting in proceedings, 261.
Warrant on, 195, form of, 566.
In habeas corpus, 466-468.
Recognizance on, in habeas corpus, 467.
For inquiry as to surety, 47, 184, 195.
For unreasonable time is void, 198,
Remedies.
Extraordinary. (See Habeas Corpus and Certiorari.)
Render by Sureties, 231. (See Bail.)
INDEX. 703
Repealed Statute, • , -
Conviction under, 285, 286, 406. ,::t" .;-' ,:■' \
Requisites. ' . " ' -
Of information, 117, 185, 245, 246.
Res Gest^, statements part of, 220.
Res Judicata, 40, 297.
Resisting or Obstructing a Peace Officer.
How triable, 386, 387, 444, 445.
Resisting Irregular Arrest, 168.
Responsibility.
Of justices and magistrates, 90-113.
Of principals for acts of agents, 244.
Restitution. '>*■
Of stolen property, 438-441.
Returns.
Under sees. 1133-1139 of the Code, form of, 594!
Of convictions, 103-105.
Constable's return to warrant of distress, 581.
To writ of habeas corpus, 465, 466, 468.
To certiorari, 519. ■-■'^
Returning Officers. .'.;'
Conservators of the peace, 5, 6. '
Rights of Property.
Offences against, forms of statements of, 643-660.
Riots.
Suppression of, 54-58.
Duty of sheriff and magistrates, 54.
" the military, 54.
Reading of Riot Act, 57, 58.
Duty of magistrate respecting, 58.
Riotously demolishing dwellings, 130.
Royal North-West Mounted Police, 5, 28, 30.
Rules of Court.
As to Habeas Corpus and Certiorari, etc. —
Ontario, 510, 511, 518, 522, 523.
New Brunswick, 518.
Nova Scotia, 510, 511, 518, 524.
British Columbia, 510, 511, 518, 524-526.
Saskatchewan, 526-531.
Alberta, 533-536.
As to cases stated under sec. 761. —
Saskatchewan, 531-533,
Alberta, 536, 537.
Sacrilege, 130.
Sale.
Of goods on distress, 305, 306.
Bailiff's inventory of goods seized, 616.
Appraisement, 616.
Notice of sale of goods distrained, 617.
Saskatchewan, Province of.
Justices of the Peace and Magistrates in, 24, 25,
Habeas corpus in, 458, 486, 526-531,
704 INDEX.
Saskatchewan, Province of — Continued.
Certiorari Rules In, 526-531.
Cases stated In, Rules, 531-533.
Seal.
Conviction must be under Justice's, 92, 280, 290.
Seamen.
Offences committed on high seas, 169.
Seafaring persons, 397.
Seas. •
Admiralty jurisdiction on high, 169.
Offences committed on high, 169.
Search Warrant.
Detention of things seized, 174.
Issue of, 174.
Information for, 174.
Execution of, 174, 175.
Need not be quashed before action brought, 175.
Backing, or endorsing, 141, 167, 168. Form of, 559.
Information for, form of, 558.
Form of warrant, 559. ^
Sentence. (See Punishment.)
Prisoner on suspended, 429-431.
Service of Copy of Warrant, or Order, 115, 294, 295.
Failure to serve does not prevent conviction, 160.
Service of Summons.
By constable, or peace officer, 145-150.
Personal service, 145, 146.
Substitutional service, 145-147.
Of summons for witness, 186, 188, 247, 248.
Sessions of the Peace. Court of General.
Magistrate having similar jurisdiction, 398-402.
Offences which cannot be tried by Court of, 402.
Several Offences.
Conviction for, 279.
Several Offenders.
Conviction of, 280.
Sheriff.
Not to act as Justice of the Peace, 6.
Duty of, respecting persons in gaol in default of sureties of the
peace, 317.
Ships.
Offences committed in, at sea, 169.
Shorthand, Taking Evidence in. (See Evidence.)
Signature to Warrants, 155-158.
Sick Witnesses.
Examination of, 186-188.
Signature of Justice, 290.
Solicitor.
Appearance by, for defendant, 254.
Not eligible as a Justice of the Peace, 7, 21, 24, 26, 75.
Plea of guilty by, in absence of accused, 152, 255, 257,
Exclusion of, at hearing, 198, 199.
INDEX. 705
Statement of AccrusBa>.
On preliminary inquiry, 211, 214.
Stated Case.
Appeal by way of, 350-358.
Recognizance of appellant, 354, 355.
Justice's refusal to state a case, 355, 356.
certificate of refusal, 355, 356.
Application to the Court for, 356.
Hearing of case stated and costs, 357, 358.
Enforcement of conviction on same being affirmed, 358.
Forms relating to, 610-613.
Crown Practice rules relating to, 531-533, 536, 537.
Statement of Offence.
In informations —
(a) Must not be by way of recital, 134.
(b) " " in the alternative or disjunctive, 134.
(c) Must include every ingredient, 133, 134, 135-138.
(d) May be in the words of the statute, 132, 133, 265.
See Information and Complaint.
See Appendix " B," 618-658, for forms.
Stealing. (See Theft.)
In a dwelling, local description required in conviction, or count,
130.
Stenographer.
Taking evidence in shorthand, 210.
Must be first sworn, 210, 259.
Affidavit of, as to depositions, 210.
STrPENDiARY MAGISTRATES. (See Magistrates.)*
Appointment of, by Dominion Government, 4, 5.
In North-West Territories, 5, 27, 28.
" Yukon Territory, 5.
" Quebec, 15.
" Nova Scotia, 17.
" New Brunswick, 18.
" British Columbia, 19, 20, 73.
Jurisdiction respecting indictable offences, 381, 382, 398, 399.
Stolen Property.
Restitution of, 438-441.
Subpcena. (See Summons for Witnesses.)
SiBPOENA Dices Tecum, 188.
SiMMARY Convictions, Part XV. of the Code.
Distinction from indictable offences, 116.
Proceedings under sees. 705-770 of the Code, 237-359.
Conviction as a bar to further proceedings, 39-41.
Time for commencing proceedings, 122, 243, 551.
Ex parte proceedings on proof of service of the summons, 154, 254.
Non-appearance of the defendant, 154, 253-255.
Original charge only can be tried, if accused does not appear, 155.
Application of Part XV. of the Code, 237.
Interpretation clause of Part XV. of the Code, 237.
Jurisdiction of justice, 238-242.
C.C.P.— 45
706 INDEX.
Summary Convictions — Continued.
Information and complaint in, 242.
Requisites of information, 245, 246. (See Information.)
Issuing warrant or summons, 238, 246, 247.
Procuring attendance of witnesses, 247, 248.
Summons for witness, out of jurisdiction, 247, 248.
Trial, open Court, 248.
Contempt of Court, 249, 250.
Conduct of trial, 250-252.
Full answer and defence must be allowed, 250, 251, 262, 263.
Taking evidence of person residing out of Canada, 250.
Exceptions and exemptions, negativing, 253, 282-284, 325.
Witnesses must be examined although defendant absent, 254.
No amendment of information in ex parte proceedings, 254.
Non-appearance of prosecutor, dismissal, 255.
Corporations, service of summons on, 256.
" shall appear by attorney, 256.
Arraignment of the defendant, 256, 257.
If he pleads guilty, conviction forthwith, 256.
" " not guilty, trial same as Part XIV., 257.
Evidence shall be taken same as on preliminary inquiry, 257, 258.
" must be in writing, need not be signed, 259.
" " " taken in presence of magistrate, 260.
Adjournment of hearing in discretion of magistrate, 260-263. ■
" must be to a day certain, 262, 263.
Defendant is bound to attend Court and wait trial, 263, 264.
Defects and objections to informations, warrants, etc., 133-138, 265-
267, 273-276, 29*0.
Excluding witnesses from Court room, 264.
Variances or defects in information, 265-267.
Defects in information not cured by the evidence, 266.
Objections at trial, 238, 252, 257, 342, 352.
*■ Trying several cases together, 252.
Taking a view, 253.
Irregularities curable under sec. 1124 of Code, 267.
Adjudication after hearing witnesses, 267-269.
Evidence must support charge as laid, 268.
Personal knowledge of magistrate cannot be acted on, 269, 405.
Two justices sitting, must act together to the end, 238, 269.
Minute or memorandum of the conviction, 269-272.
Not absolutely necessary that there should be any minute made,
269.
Variance between minute and conviction, 270-272.
Minute need not state amount of costs, 270, 271.
Drawing up the conviction, 272-275.
Must follow summons, if accused not present, 275.
Warrant may issue and be acted on before formal conviction
drawn up, 273.
Charge must be positive and certain and offence not charged dis-
' junctively or in alternative, 273, 285, 286.
Examples of convictions and what they should contain, 273-288.
Vagrancy and proof of, 276.
Conviction for two offences is bad, 279.
INDEX. 707
Summary Convictions — Continued.
Conviction not under seal is a nullity, 280. *•
Names of informant and defendant must appear in, 280.
Name and style of magistrate must be set forth, 281.
Time and place of committing act must be specified in conviction,
281, 282.
Exception by way of proviso, 283, 284.
Conviction must adjudge forfeiture of the penalty, 284, 285.
All facts necessary to support conviction must be alleged, 287.
Punishment only after conviction, 288.
Orders, distinction betv^^een, and convictions, 288-290.
Minute of order must be served before distress, 290, 294, 295.
Conviction must be under hand and seal of justice, 290.
Joint offenders and penalty adjudged, 291.
First conviction and payment of damages, sec. 729, 291-294.
Offences to which sec. 729 applies, 292, 293.
Dismissing complaint, order, 294.
Certificate of dismissal, 294, 296, 297.
Common assault and adjudication upon, 295. (See Assault.)
Definition of assault, 295.
Dismissal of complaint of assault, 296.
Payment of fine or suffering imprisonment adjudged operates as
release from further action, 296, 309.
Effect of certificate operating as a bar, 297.
Costs on conviction or order, 298-303. (See Costs.)
Amount of costs must appear on face of conviction, 304.
Excessive costs may be reduced on certiorari, 302.
Costs of conveying defendant to gaol, 302, 303.
" on dismissal and distress against prosecutor, 303, 311.
" allowed recoverable same way as penalty, 304.
What punishments may be adjudged, 304, 305.
Warrant of distress and backing of same, 305-307.
Magistrate's discretion as to fine alone, or imprisonment, 307.
Different degrees or kinds of punishment, 307.
Imprisonment in first instance, and hard labour, 308.
" in addition to fine, 309.
Enforcing adjudication, different kinds of warrants, 309-311.
Another justice may issue warrants, 310.
Manner of executing warrants, 310-311.
Distress for costs against goods of prosecutor, 311.
Imprisonment of prosecutor in default of distress, 311.
Detention of defendant pending distress, 312.
Proceeding where defendant is in prison on conviction for another
offence, 312.
Sentences for too long or too short a time, 287, 288, 298, 308, 427,
502, 506.
Sentences running consecutively or concurrently, 312, 426.
Imprisonment to be in common gaol of county or district, 313.
Payment, or tender, to peace officer, to stay warrant of distress, 313.
Payment to keeper of the gaol of fine and costs, 313.
Sureties to keep the peace, 314-316.
Imprisonment in default of recognizance, 314.
Recovery of costs, 304.
708 INDEX.
Summary Convictions — Continued.
Release from further proceedings, 296, 309.
Complaints of threats of personal injury, 268, 315, 316.
What warrant of commitment in such a case must show, 317, 318.
Where person imprisoned in default of sureties, duty of sheriff
to notify Judge, 316, 317.
Imprisonment for non-payment of costs, 318.
No appeal from order of justice to find sureties, 319.
But habeas corpus and certiorari will lie, 319.
Binding over both parties, 319.
Manner of taking recognizance, 320.
Discharge of recognizance, 320.
Appeal from convictions or orders, 320-349.
Right of appeal is to any person aggrieved, 321, 323.
Appeal after plea of guilty, 321, 322, 326, 344.
waived or lost, 324, 331.
Requirements of the statute are imperative, 325, 332, 333, 334, 336.
Judge imposing reduced sentence on appeal, 325.
Appeal when certiorari pending, 326.
Cases as to right of appeal, etc., 321-327.
No second appeal after first dismissed, 334, 340.
Procedure on appeal, 327-329.
Notice of appeal and filing same, 329-334.
Contents of the notice, 332-334.
Substitutional service of the notice, 333.
Recognizance, or deposit, on appeal, 334-337.
Appeal where penalty imposed, 337.
Deposit to be made with justice, 337, 338, 339.
Transmission of deposit to court appealed to, 338, 339.
Hearing of the appeal, 339, 340.
Using evidence taken before the justice, 342.
Judgment on appeal final, 341.
Objections taken on the appeal, 342.
Judgment shall be upon the merits, 343, 344.
Costs where appeal not prosecuted, 344, 345, 346.
Proceedings where appeal fails, 343, 346, 347.
Transmission of conviction by justice, 347, 348.
Return of papers to justice after appeal fails, 347.
Costs of appeal and recovery thereof, 349.
Abandonment of appeal. 349, 350.
Stating a case on points of law. 350-357.
Recognizance before case stated. 354, 355.
Refusal by justice to state a case, 355, 356.
Application to Court for rule to the justice. 356.
Certificate of refusal by magistrate. 355, 356. Form of, 610.
Hearing of stated case by the Court, 357.
Costs, and enforcement of conviction after case stated, 358.
Certiorari not necessary to remove conviction, when case stated,
358.
Where an Act provides for no appeal, there cannot be stated case,
358.
Forms of application for stated case, etc.. Appendix " A," 610-612.
Tariff of fees under Part XV., 358, 359.
See also Convictions.
INDEX. 709
SuMMAHY Trials, Part XVI.
Proceedings under this Part of the Code, 380-455.
Scope and powers of magistrates, 380.
Interpretation clause, 381.
What " Magistrate " means and includes, 381, 382.
Jurisdiction of magistrates mentioned in sec. 771, 383-387.
Resisting or obstructing a peace officer, how triable, 386, 387.
Jurisdiction on charge of assault causing bodily harm, 382, 383, 423.
List of offences that may be summarily tried, 383.
Jurisdiction of some magistrates to try more serious offences,
384, 385.
Definition of " theft," whether theft from the person included, 384.
Decisions of several Courts respecting jurisdiction, 386, 387.
Disorderly houses defined, sec. 228, 388.
Landlords, etc., of, 388.
Search for women in houses of ill-fame, 389.
" in gaming and betting houses, 389, 390.
Powers of magistrate to examine persons found in gaming house,
etc., 390, 391.
Indemnity to witness making full disclosure, 390, 391.
Jurisdiction to proceed when no information on oath, 118.
Search and seizure in opium joint, 391.
" for vagrants in disorderly houses, 391.
Prima facie evidence of gaming house, 391, 392.
Constables obstructed in entering, 391.
Charges against corporations, 392.
Magistrates' absolute jurisdiction re disorderly houses, 392-397.
" " " over seafaring person, 397.
Maximum punishment same, no matter what magistrate tries
case, 393.
*^ Exercise of the jurisdiction is optional, 385, 395, 413, 447.
Absolute summary jurisdiction of justices under other parts of
Code not affected, 397.
Magistrate's absolute jurisdiction in certain provinces, 397, 398.
" have jurisdiction of Courts of General Sessions of the
Peace, in Ontario, sec. 777, 398.
In other provinces where city or town is 2,500 population, 399, 400.
Punishments awardable, 400, 403, 405.
Attorney-General may intervene in certain cases, 399, 401.
Habeas corpus and certiorari will lie after convictions under this
Part, 396, 404.
Jurisdiction absolute in theft, etc., in cities of not less than 25,000
population, 399, 401, 404.
Consent of accused is required to give jurisdiction in theft from
the person, 401.
Crimes which cannot be tried by General Sessions, 402.
" " " Magistrates under sec. 777, 402.
Cases relating to summary trials by Magistrates, 403-406.
Trial of offence committed outside jurisdiction of magistrate, but
in same province, 405, 422, 424.
Proceedings on arraignment stating substance of charge, 406.
Offer of election to be made by Magistrate to accused, 406-410.
Remand into custody for new ^rial on proper offer of election, 410.
710 INDEX.
SiMMARY Trials — Continued.
Recital of consent in conviction, 410, 450.
" " " warrant of commitment, 415.
Reduction of charge to writing by Magistrate, 411-413.
Description of the offence, 415.
If accused elects for jury, proceedings same as on preliminary in-
quiry under Part XIV., 415, 446.
If person consents and pleads " not guilty," trial is conducted as
at nisi prius, 183, 414.
Taking evidence in shorthand, 414.
If charge amended after consent, new offer of election must be
made, 415.
Magistrates may make order for particulars, 415, 416.
Admission of facts by accused or his counsel, 416.
Appeal by reserved case to Court of Appeal, 416-421.
No other appeal lies except in cases provided for in sec. 797, 417,
418, 453.
If no substantial wrong, the conviction stands, 421.
Minister of Justice may order a new trial, 421.
Admission to bail pending appeal, 422.
Accused may be convicted of lesser offence than that charged, 422,
423.
Punishment for offences only after conviction, 423.
Substitution of good for bad conviction or commitment, 423, 424.
Punishment is in the discretion of the Court, 424.
Imprisonment, hard labour, 425.
Cumulative punishment, 426.
Imprisonment in the penitentiary, 426, 427.
" common gaol, 427.
reformatory, 381, 427.
Warrant of commitment must be certain and definite, and to com-
mon gaol in county for which Magistrate is acting, 427.
Conviction will not be quashed for want of form, 428.
Commitment not vaid for defects, if conviction is good, 428.
Suspended sentence and recognizance therefor, 429-431.
" " concurrence of Crown counsel, 429.
Offender may be ordered to pay the costs of the prosecution, 429,
430.
Complaint must be laid of breach of recognizance before offender
can be sentenced for original conviction, 430, 431.
Previous convictions should be proved at close of trial, 431.
Warrant may issue on breach of condition of recognizance, 431.
Before whom offender may be brought, 432.
Subsequent proceedings in such case, 432, 433.
Fines to be in discretion of the Court, 433.
Conviction must adjudge forfeiture, 433.
Fines in lieu of, or in addition to, imprisonment, 434.
Corporation may be fined in lieu of prescribed punishment, 434.
If no mode prescribed for recovery of fine, civil action may be
brought for its recovery, sec. 1038, 434.
On conviction offender may be required to pay all costs and ex-
penses of the prosecution, 434.
Allowances for loss of time may be included, 434, 436.
INDEX. 711
Summary Trials — Continued.
Costs and expenses may be deducted out of moneys taken from the
offender on his apprehension, 434, 436.
Or may be enforced by civil action, 434, 436.
How costs are to be taxed where no tariff of fees, 435, 436.
On conviction, by indictment, for assault, costs, 436.
Compensation for loss of property, 436, 437.
Amount awarded to be a judgment debt, 436. . -
Compensation to purchasers of stolen property, 437, 438.
Restitution of stolen property, 438-441.
Sale in market overt, 439, 440.
Must be a conviction before order made, 438, 440.
Restitution of proceeds of stolen goods found on prisoner, 440.
Bonds to keep the peace in addition to sentence imposed, 441, 442.
Punishment on convictions under sec. 773, 442-445.
Procedure where property stolen, etc., exceeds $10 in value, sec.
782, 445-447.
Magistrate may decide not to proceed summarily, 447.
Person accused shall be allowed to make full answer, 448.
Objections at trial, 252, 448.
The Court shall be open to the public, 448.
Taking a view, 448.
Summons may issue to witnesses, 449.
Warrant may Issue for defaulting witness, 449.
Dismissal of the charge, and certificate thereof, 450.
Conviction same as conviction on indictment, 450.
Certificate of dismissal operates as a release, 450, 451.
Copy of conviction or certificate as evidence, 450.
Transmission of papers to cl%rk of Court, 450.
Release from further proceedings, 451.
Justices may remand certain offenders for trial before nearest
magistrate, sec. 796, 452.
Appeals from convictions under sec. 773, 452, 453.
Juvenile offenders, 453-455.
Summons.
Issuing of against offenders, 139, 144, 246, 247.
For offences outside limits of jurisdiction, 140, 141.
When it should be issued instead of warrant, 141.
Discretion is with Justice as to issuing, 141, 246.
It should be directed to the party charged, 142, 144.
" be under hand and seal of the Justice, 142.
" contain the substance of the charge, 142.
" give ample time for appearance, 142, 147, 148, 149.
" be to appear at a certain place and time, 142.
" not to be signed in blank, 144, 145.
" be served by constable, or peace officer, 144.
In absence of defendant may be served on others, 144-147.
Proof of service must be made under oath, 144, 147, 148, 153.
Must not be issued on a Sunday, 145.
" " statutory holiday, 145.
As to sufficiency of service of same, 145-149.
Irregularities in, 115.
Recital of information in, 119.
712 INDEX.
Summons — Continued.
Substitutional service of, 144-149,
Must follow the information in describing offence, 155.
Waiver of irregularities by defendant, 151-153.
Issue of second summons after conviction quashed, 153.
Witnesses, summons for, 186-189, 247, 248, 449.
Forms of —
For indictable offences, 560.
" witnesses, 563.
Sunday.
Information may be taken on, 167.
Warrant may issue on, 145, 161, 167.
" " be executed on, 145, 161, 167.
Escaped prisoner may be retaken on, 145.
Summonses cannot legally issue on, 145.
Recogniance under sec. 692, may be taken on, 226.
Ministerial acts may be performed on, 144.
Sunday Observance Law.s — Lord's Day Acts.
Attorney-General's consent to prosecution, 374.
Barber's shop, keeping open, 374.
By-laws, unreasonable or ultra vires, 375.
Cab driving, 375.
Cigars, sale of, 375, 376.
Constitutionality of, 38, 378, 379.
Farmer building fences, 376.
Ice cream, candies, etc., sale of, 376.
Newspapers, sale of, 376, 377.
Playing cards for money, 377.
Pool rooms, keeping open, 377.
Sale of land, 377.
Stores and shops, sales in, 377.
Theatres, etc., performances in, 377, 378.
Ultra vires statutes, 38, 378, 379.
Supreme Court of Canada.
Judges of, Justices of the Peace ex officio, 5.
Jurisdiction as to habeas corpus, 458, 460.
Suppression of Riot. (See Riot.)
Sureties for the Peace.
When and how ordered, 268, 314-320, 441, 442. (See Summary Con-
victions.)
Conviction for assault cannot follow mere complaint for, 268.
Forms —
Of complaint for, 582.
" commitment in default, 583.
" recognizance to keep the peace, 583. (See Recognizance.)
Suspended Sentence.
And recognizance therefor, 429-431.
Concurrence of Crown counsel in certain cases, 429.
Offender may be ordered to pay costs of Court, on, 429.
Apprehension on breach of recognizance, 431-433.
Justices before whom offender may be brought, 431, 432.
INDEX. 713
Suspicion and Belief.
Not sufficient upon which to issue warrant in summary convic-
tions, 155.
Swearing of Witnesses.
Mode of administering oaths, 201-203.
Taking Evidence.
Mode of taking same under oath, 207-210.
May be taken in shorthand, 210.
Depositions to be read over and signed, 211, 258.
May be taken in absence of accused in summary conviction trials,
258.
Must be taken in presence of the accused and magistrate in pre-
liminary inquiry and summary trials, 181, 188, 201, 414.
(See Evidence.)
Tariff of Fees and Costs.
In summary convictions, 301, 303.
Justice's fees, 358, 359.
Constable's fees, 359.
Witness' fees, 359.
Interpreter's fees, 359.
Taxation of Costs.
(See Costs.)
Telegrams.
Arrest on authority of, 160, 161, 470, 483.
Tender.
Of amends, 101, 551, 552.
Territorial Limits and Divisions.
Jurisdiction of justices in 73, 161, 166, 167.
Meaning of, 237.
Arrests within, for offences without, 169.
Theft.
Term " Larceny " abolished, 2.
Of property not exceeding value of $10, 383, 401.
From the person, 384, 401.
Threatening.
To injure persons, 315.
To bum or set fire, 315, 317.
Time or Date.
Of offence should be stated in information, 126, 127.
" conviction, 287.
" indictments, 127, 130.
Time, Limitation of.
For commencing criminal prosecution, indictable offences, 123, 124,
551, 552.
Summary convictions, 123, 124, 243, 551.
(See Limitation of Actions.)
Title.
To land, ouster of jurisdiction, 83, 84, 241, 242.
Treason.
Form of indictment for, 618.
Transmission.
By justices of depositions, etc., to clerk of peace, 227, 228, 230, 338,
339, 347, 348.
714 INDEX.
Trespass.
Title to land in question, 83, 84.
Thai..
Commitment for, 223.
Summary convictions, 183, 248.
Open Court, at, 248.
Order in Court, 248, 249.
Conduct of, 250-252.
Objections at. See Waivek.
Indictable offences, summary, 183, 380-455.
Procedure under sec. 778 of the Code, 406-416.
New trial by order of Minister of Justice, 421.
Of charges, theft, etc., over $10, 445-447.
Of juvenile offenders, 453-455.
Of several cases together, 252, 253.
Taking a view, 253.
Uncertainty in Statement of Chabge, 185, 186, 274, 277, 278.
Unorganized Territory.
Trial of offences committed in, 29.
Unlawful Assembly.
And riots, 55, 56.
Unlawful Wounding.
Punishment for under sec. 773, 443.
Vagrants.
What convictions against, should specify, 276, 277.
Disorderly houses, 388-397.
Search for in disorderly houses, 391.
Statements of charges against, for informations, forms of, Appen-
dix " B," 629, 630.
Valuable Security.
Valuation of, 383.
Variances.
Between information and evidence, 128, 255.
In summons, warrants, etc., 185, 265, 266.
Venue. ^
Means place where crime is charged to have been committed, 128-
130.
Not necessary to state in body of indictment, 130.
In warrants of arrest, 157.
ViEXATious Actions.
Against magistrates and justices, 12, 91, 95.
View, Taking a, 253.
Waiver.
Of invalid service of summons, 151.
" irregularities in information, etc., 151-153.
None where there is absolute lack of jurisdiction, 152.
Of summons altogether by appearing and pleading, 152, 153.
" irregular remand, 195, 264.
" objections not taken at trial, 155, 159, 238, 252, 257, 342, 352.
" examination on preliminary inquiry, 180, 181.
" taking depositions in writing, 259, 260.
" right to adjournment, 263.
INDEX, 715
"Warrant.
Of commitment, 223-225, 427, 428.
Must show authority of justice on its face, 266, 424.
" " a conviction, 311.
Of commitment, summary conviction, costs, 299-303.
substituting good for bad, 223, 224.
" deliverance, after bail furnished, 235.
Substituting good for bad, 311.
Delay in issuing, 311, 474.
May be issued and acted on before formal conviction or order
drawn up, 273, 295, 311.
For costs of Court, 311, 312.
Where defendant already in prison, 313.
Summary trials under Part XVI., commitment, 427.
Of arrest.
Issuing same, 139-144, 155-161, 235, 246, 247, 261.
Copy to be served in summary conviction case, 115, 246, 247.
Issuing without jurisdiction, 90.
information, 118.
oath to information, 118, 156, 245.
Recital of information in, 120.
Where offender out of jurisdiction, 140.
Endorsement or backing of, 140, 141, 167, 168, 247.
-^ Examining witnesses before issuing, 143, 144, 160.
A justice is not bound to issue, 143, 144, 156.
When it should issue, 141, 142, 144, 154.
Officer to have with him and produce, if required, 115.
Should not issue an information of mere suspicion and belief, 121,
122.
Must be under hand and seal of justice, 155, 156.
" " directed to and executed only by a constable, 155, 156, 161.
" contain short statement of offence, 155, 156.
Need not be returnable at any fixed time, 156, 169.
May issue, although summons already issued, 156.
Always in force till executed, 156, 169.
Must not be signed in blank, 155, 156.
Filling up, after signature, 157, 158.
Name of offender, or his description, should appear on face of, 155.
156, 157.
General warrants are void, 157, 158.
Must state specific offence, 158.
" follow description of offence in information, 156.
" give day and year of issue, 158.
Venue should be stated in margin, 157.
When issued by more than one justice, 158.
Where a justice issues illegally, 159, 160.
When executed by unauthorized person, 159.
When illegal, jurisdiction to proceed, 159, 238, 252.
On telegram, 160, 161, 483.
Protection of peace officers executing, 161.
Execution of, by constable, 161-166. See Arrest.
Signature to and execution of by justice, 155, 160.
716 INDEX.
Warrant — Continued.
May be Issued and executed on statutory holiday and Sunday, 145,
161, 162, 167.
For offences commiUed on high seas, 169.
Irregularities and variances in, 185, 265, 266.
For witnesses in default of appearance, 186, 189-192.
" " who have absconded, 226, 227.
Under provisions of Part XV. Summary Convictions, 238, 246, 247.
For default in recognizance, 261.
" " " sureties to keep the peace, 314-316.
Of distress, 304-306, 309-314.
" remand, signature of, 200.
Search warrants and forms, see Search Warrants.
Forms of.
To apprehend on seas, or abroad, 559.
" " in first instance, 560.
" " when summons disobeyed, 561.
" " and carry before justice of other county, 562.
When witness has disobeyed summons, 563.
For witness in first instance, 564.
" " disobeying subpoena, 565, 589.
" " refusing to be sworn, 565.
" remanding a prisoner, 566.
" commitment of a prisoner, 568.
" " " " witness, 570.
" " on an order, 579.
" " for want of distress, 580, 581, 586.
Of deliverance on bail, 572.
For default in finding sureties, 583.
Of distress for non-payment of penalty, 577, 578.
" " on order for payment of money, 578.
" " for non-payment of costs, 581.
" Endorsement or backing on, 561, 582.
To apprehend person indicted, 591.
Of commitment of person indicted, 591.
To detain a person who is Indicted, 592.
Distress warrants, 577, 578, 581, 585.
Endorsement on distress warrant, 582.
Water.
Offences committed on, special jurisdiction, 131, 132.
Wife.
(See Husband and Wife.)
Wilfully.
Not included in " unlawfully," 423.
Equivalent to " knowingly and fraudulently," 47.
Withdrawal of Charge to Lay New Ixformatiox, 41, 260.
Witnesses.
(See Evidence and Evidence Act.)
Compelling attendance of, 186-192, 246-248, 449.
Evidence of, to be given under oath, 201, 254.
Examining before issuing warrant, 118, 143, 144.
On preliminary inquiry, 176, 180, 181.
Procuring attendance of, by warrant, 190-192, 449.
INDEX. 717
Witnesses — Continued.
Expenses of, payment of, 192.
Examination of sick and infirm, 186-188.
Proceedings against defaulting, 190-192.
In Canada out of the Province, 192, 247.
Out of Canada, examination of, 192, 193.
Refusing to be examined, or sworn, 193, 194.
Oaths administered to foreigners, 201, 202, 544.
Affirmation instead of oaths, 203, 548, 549.
Who need not be sworn, 203.
Examination of infants, 203, 204, 549.
" deaf mutes, 205, 544.
" " those having no religion, 205, 206.
Exclusion of, from Court room, 206, 264.
Who are competent and compellable, 206, 207, 538-540.
Husband and wife, as, 206, 538-540, 542.
Producing documents, 188.
Binding over to give evidence, 225, 226.
Warrant for absconding, 226, 227.
" defaulting, 189-192.
Discretion of magistrate to refuse, 189.
Committal in default of bail, 227.
Summons for those out of jurisdiction, 247.
Adjournment to procure, 257.
Examination of, in absence of accused, 151, 258.
Fees to, under Part XV., 359.
Examination of, on appeal, 342.
Right of accused to give evidence, 538-542.
Use of depositions taken at coroner's inquest, 541.
Disclosures during marriage, 542.
Incriminating questions, 207, 543.
Expert testimony, 207, 545.
Adverse, 546, 547.
Cross-examination of, 547-548.
Forms.
Summons to a witness, 563.
Warrants for, see Warrant.
Conviction for contempt, 564.
Deposition of, 567.
Recognizance to give evidence, 569, 570.
Order discharging, when accused discharged, 570.
Writ of Fieri Facias.
Form of, 594.
Yukon Territory.
Justices of the peace and magistrates in, 28, 29.
Royal North-West Mounted Police, in, 29, 30.
LAW ire^^^T.^ttNu^
LOS ANGBLES
A 000 681 522 9
Live Music
Archive
Librivox
Free Audio
Metropolitan Museum
Cleveland
Museum of Art
Internet
Arcade
Console Living Room
Open Library
American
Libraries
TV News
Understanding
9/11